R. v. Forbes, 2018 BCPC 371

Citation: R. v. Forbes 2018 BCPC 371 Date: 20181217 File No: 29162-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER WILLIAM FORBES REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.M.D. STEWART Crown Counsel appearing by teleconference: D. Kavka Defence Counsel appearing by teleconference: C. Harvey, Q.C. Place of Hearing: Prince Rupert , B.C. Dates of Hearing: May 30-31, September 25, December 3, 2018 Date of Judgment: December 17, 2018 [ 1 ] THE COURT: These are reasons for sentence on the Information before the court. INTRODUCTION [1]

[2] In Oral Reasons for Judgment delivered September 25, 2018 I found Mr. Forbes guilty on Counts 1, 2 and 4 on the six-countInformation. [3] The sentencing hearing proceeded on December 3rd, 2018. The court sat late and it was not possible to give these reasons at thattime. The earliest counsel was available for a decision on sentence was December 17, 2018. PRINCIPLES OF SENTENCING [4] The Court of Appeal decision in R. v.

Brown, 2010 BCCA 225 at para 13 cites the Alberta Court of Appeal decision in R. v.Terroco Industries Ltd, 2005 ABCA 141 as the leading case on the principles of sentencing for environmental offences andadopts a special approach with the court focusing on the following areas; • Culpability, • Past Involvement with the authorities, • Acceptance of responsibility, • Harm; and • Deterrence. [5] The New Brunswick Provincial Court in R. v.

Stratabound Minerals Corp, 2015 NBPC 7 at paragraph 22 references R. v.Terroco Industries Ltd, (supra), and its description of a “Sliding Scale of Culpability” as follows; THE SLIDING SCALE OF CULPABILITY 22. Sentencing judges must impose a sanction based on an objective, reasoned and measured determination of an appropriatepunishment. That punishment must reflect the degree of culpability of the offender.

Terroco Industries in fact states that culpability mustbe a dominant factor in sentencing offenders for environmental offences, recognizing however that the culpability factor is to be measuredon a sliding scale. Sentencing judges are acutely aware that the degree of criminal wrongdoing is not static but rather varies from case tocase. An environmental offence, for example, can be placed at the upper echelon of seriousness where the acts are deliberate, methodicalor premeditated.

If, on the other hand, the acts forming the substance of the allegations are based on flimsy negligence or tenuouscarelessness, the culpability factor would be seriously diminished. Slotting any offender in the appropriate position on this sliding scale isnot always an easy task. This is due to the myriad circumstances that give rise to each offence, the variety of which may render such adecision challenging. [6] However, in making a decision on the fine amount I must consider the related concepts of denunciation and general deterrence,noted in R. v. Brown, 2010 BCCA 225 at paragraph 13.

This was also addressed in R. v. Chalupiak, 2018 BCPC 82. Citing R. v.Shamrock Chemicals Ltd., (1989), Carswell Ont. 2798 (Prov. Off. Ct.), page 3, lines 19 to 29, and page 4, lines 8 through 15 JudgePhillips stated: The true measure of the effectiveness of prosecutions for violation of environmental legislation, is not in laying charges or obtaining aconviction but in the result of the conviction. … . . . the sentence is the most visible result of prosecution, the outcome by which the general public - rightly or wrongly - judges thesuccess of a prosecution.

Therefore, the outcome of the sentencing process is an important determinant of whether the public has respectfor the legal system. [7] This approach was followed in the fisheries context by Justice Punnett in R. v. Schafhauser, 2017 BCSC 2288 at paragraph 12 asfollows; [11] The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must betaken seriously. Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused and generallyof other members of the public who are inclined to act in the same manner.

Penalties must be sufficiently severe to communicate to theaccused that there is a high risk associated with their illegal activities both for the resource they are affecting and to themselves for theirconduct, (see R. v. Cox; [1999] N.J. 264, NFLPC), R. v. Forsey, the latter at [1999] N.J. No. 264 (N.L.P.C.) at paragraph 20). [12] In this instance, the sentencing judge appropriately highlighted the need for an appropriate sentence to deter similar conduct by thecommercial fishing community generally and specifically by Mr. Schafhauser.

I note that many of the authorities refer to the fact that apenalty should be more than simply a cost of doing business. In particular, in this instance, that is significant because this is a regulatorystatute designed to preserve a valuable resource. In sentencing on regulatory offences, our Court of Appeal has accepted the followingsentencing principles: culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, and deterrence (see R.v. Terroco Industries Limited, 2005 ABCA 141 , 2005 196 C.C.C. (3d) 293, a decision of the Alberta Court of Appeal, pages 304to 311; and R. v.

Brown, 2010 BCCA 225 , at paragraph 13). [13] In this case, the trial judge appropriately considered and weighed each of the above factors in crafting a fit sentence for Mr.Schafhauser. The sentencing judge properly considered his personal circumstances in assessing the appropriate fine amount. Indiscussion with Mr. Schafhauser, the sentencing judge provided him time to pay.

I note, as well, that where there is an issue, and thereapparently is not in this case, with the ability to pay, this should be remedied by additional time to pay and not by diluting the deterrentnature of the sentence by lowering the sentence amount (see Brown at paragraphs 20 to 22). CULPABILITY [8] On Count 1, I found that Mr. Forbes had incidental-by-catch, the retention of which was prohibited, specifically Sockeye and

Steelhead salmon, on board his vessel at a time when this was not permitted. [ 9 ] With respect to the manner in which these fish were caught, I accepted that he had exercised due diligence to avoid incidental by-catch.

The impugned fish were only detected after they were unloaded and sorted at the fish processing plant, and then removed from the offal bin and returned to the vessel. [ 10 ] Count 2 is a failure to make a Daily Catch Report and to record that confirmation number in the paper harvest log prior to fish being landed. [ 11 ] Count 4 was a failure to record the fish that been removed from the offal bin and taken aboard on July 20 th , 2016. [ 12 ] I accept Mr. Forbes’ explanation relating to the retrieval of incidental by-catch from the offal bin at the fish processing plant.

In the past, such fish was given to local food programs such as the Salvation Army food kitchen or the Transition House. In 2016 this was no longer occurring and all fish, including these Sockeye and Steelhead salmon were being sent to the rendering plant. Mr. Forbes, as well as many other fisherman, disagreed with sending such fish to the rendering plant, and took it upon themselves to retrieve the fish from the offal bins and bring it back aboard. [ 13 ] I accept that Mr. Forbes had no intention to sell these fish.

I accept that it was his eventual intention to distribute the fish to people known by him and his crew in the local community for personal consumption and enjoyment. [ 14 ] Mr. Forbes explanation is not an excuse. He was not permitted to do this. If he and other fisherman were upset about this change in policy, their remedies were limited to the lawful remedies of advocacy, democracy and the courts. [ 15 ] However, on the sliding scale of culpability I do not ignore that there was no commercial motive. There was no intention to sell these fish.

The intention here was to convert offal into a “gift” of food. [ 16 ] As to the failures to record, Count 2 is not a serious offence. I note that in different areas of the Pacific fishery, such reporting is permitted after off-loading. It was not known with certainty why this timing is different in different locations.

While recordkeeping is absolutely critical to the preservation of this resource, including the fair allocation between competing local demands of the commercial fishery, aboriginal fishery and sport fishery, as well as competing international demands such as the relationship with the United States, with respect to Count 2, the issue here is timeliness, rather than accuracy. [ 17 ] However, Count 4 is the total failure to record the fish that were removed from the offal bin on or about July 20 th , 2016. This is a more serious form of non-reporting.

I am mindful that this is some 55 fish, on a date when 103,000 pounds of Pink Salmon were off- loaded in Prince Rupert. However this only appears minor in the context of a commercial seiner. In the context of a gill netter, or the sports fishery the non-reporting of this many fish would be very serious. ACCEPTANCE OF RESPONSIBILITY [ 18 ] Crown submitted at sentencing that Mr. Forbes was deserving of a higher fine because he was not contrite. His submitted absence of contrition was based on his disagreement with certain of the limits placed on the commercial fishery.

However, this submission appears to ignore that he was found to be diligent in the manner that he sorted and released the incidental by-catch. Mr. Forbes disagreed with the limits on retention, but he did not ignore them. He appears to have met the industry standard, and on certain dates, did better than many within the fleet. [ 19 ] Instead, Mr.

Forbes removal of the fish from the offal bin, was principally a disagreement with wat was seen by him, and others, as needless waste of a limited resource. [ 20 ] Crown submits at paragraph 18 of its submissions that; “truly inadvertent losses when returned to the ocean continue to contribute to the non-human food chain links.” I found that the original failure to detect these fish was inadvertent. The controversy here, was whether it was better to redistribute that inadvertently caught fish to those in need, or as offal to a fish rendering plant. [ 21 ] Mr.

Forbes ultimate defiance was not of the limits placed on the commercial fishery, it was the decision to send Sockeye and Steelhead fish to a rendering plant, rather than for human consumption. [ 22 ] Crown submits that two failed arguments at trial; that of a passerby entitlement to the fish in the offal bin, and a “feigned” ambiguity associated with ‘attachment,’ suggest that he did not “in any sincere way,” accept responsibility for his circumstances. [ 23 ] We must take great care with any submission concerning the conduct of the defence on sentencing.

On principle, choices taken in the conduct of the defence should not be taken into consideration on sentence. A person charged with an offence is presumed innocent until proven guilty. [ 24 ] I note from Ruby, On Sentencing,

Chapter 6.1; We must be wary of creating fear in an innocent person that if he conducts a defence vociferously, and is disbelieved, he will suffer a penalty for exercising constitutional rights. [ 25 ] What was described here as “feigned” ambiguity on the issue of attachment was accepted as the correct analytical approach by Mr. Justice Halfyard in R. v. Edwards, and more recently by my brother Judge, Klinger in R. v. Helin. There was nothing frivolous about this defence, and I benefited by its advancement. [ 26 ] In particular, I note my comments in obiter on this point.

I do not ignore DFO’s role in the somewhat cumbersome licensing process, and my comments on the “resulting confusions experienced by fishers making genuine efforts to follow the labyrinth of overlapping and often variable reporting obligations.”

[27] Further, I disagree with Crown submissions on Mr. Forbes’ conduct or demeanour. Crown’s submissions included references tohim “mocking” fisheries officers, and his conduct to be “repugnant”. [28] If a copy of these reasons were requested, I would attach the transcript of Mr. Forbes’ statement to Fisheries Officer Wade Norman in the Wheelhouse of the Vessel Lasqueti Sons on July 22nd, 2016, marked as Exhibit No. 2 at trial as an Appendix to thesereasons. [29] I find I cannot reconcile crown’s submissions with this record of what occurred.

When I read this transcript, it is an example ofwhat Justice LaForest described as the partnership between fisherman and fisheries officers. That reference to Justice La Forest is fromthe case of R. v. Fitzpatrick (SCC). [30] This case considered the admissibility of fishing logs and hail reports made by the appellant fisherman with estimated poundageand the date, time and location of catch during each trip.

Given that fisherman are required to provide such documents and a failure to doso is in itself an offence – they were excluded at trial in the case of Fitzpatrick on the basis that their admission would violate thefisherman’s s. 7 rights against self-incrimination.

On appeal, the acquittal was set aside and a new trial ordered. [31] With respect to the absence of an adversarial, or at least inquisitorial relationship, between the Fisheries officer and thefisherman, LaForest J. commented at para 36 page 13 of 20 that: Indeed, far from being “adversaries”, the individual and the state are in fact partners, joined together in the need (1) to protect the fisheryas a valuable resource through conservation measure, and (2) to fairly allocate the fish that do exist between all those who seek to haveaccess to them. [32] Justice LaForest, in considering the appellate fisherman, commented that: .. individuals … who are compelled to furnish hail reports and fishing logs are not in an adversarial or even inquisitorial relationship withthe state at the time they provide this information. [33] I do not read Justice LaForest’s reference to a “partnership” to be a description, (necessarily) of a friendly relationship.

Instead itis a partnership in the sense of a common interest. This is referenced as the joint need to see a fair allocation of a limited resource. Fisherman compete for that limited resource. The “rules” ensure that the allocation (and competition for) the resource is fair and that it isconserved. [34] In this regard, fisherman and Fisheries officers have a common interest in an accurate record of all fish caught by the entire fleet. That accurate record may include certain quota exceedances or prohibited by-catch.

All participants of the fishery have a common interestin that information which is centrally relevant to the fair allocation and conservation of a limited resource. [35] Now, having reviewed the case of The Queen and Fitzpatrick, I return to my impressions of the July 22nd, 2016 discussion in thewheelhouse of this fishing vessel. It is non-adversarial, it is conversational; it is fair. Both Officer Norman and Mr. Forbes are sharing afrank honest dialogue. At page 3, Officer Norman accepts Mr. Forbes assertion that he is not selling these fish, offering his assumptionthat they are keeping them, with Mr.

Forbes and Officer Norman then agreeing that Sockeye are “tasty.” Officer Norman later acceptsMr. Forbes assertion that Sockeye are not remaining on the deck of his boat during sorting for too long to survive. Officer Norman isgenuinely looking for solutions to the pressures on time and their impact on incidental by-catch. There is a genuine discussion around thebenefits of extending the time of the opening. Officer Norman later acknowledges Mr. Forbes comments stating; “or as you said, fishslower and open more days.” [36] When Mr.

Forbes refers to “farting through silk” he is not whining, he is acknowledging that in certain years, if three out of fourfisheries go well, he and his crew can do well, but much of the time it is a struggle. He is not laughing about a sense of entitlement. Hiscolourful expression may not be Hemingway, but it is a sense of humour shared between two men who spend much of their lives at sea. [37] Similarly his comments about individual fisheries officers is in the context of an acknowledgement that they are understaffed andunable to conduct sufficient habitat surveys.

The comment about one fishery officer being possessive and “naming the fish” is a joke. Itis not mocking. In context, Mr. Forbes goes on to specifically comment on Fisheries Officer Stan Kish as a “good honest guy,” and Mr.Forbes notes the impact of cutbacks within the fisheries department. [38] My impressions of the July 22nd, 2016 discussion, in that wheelhouse, was of a respect shown and deserved by Fisheries OfficerNorman, and it is mutual. There is a mutual exchange of information.

Both parties, and indeed the court, benefits from this approach andit is an example, if not the embodiment of what Justice La Forest commented upon in terms of this concept of a partnership. [39] Ultimately, the central issue for sentencing on Count 1 is fairly described in the July 22nd, 2016 discussion between FisheriesOfficer Norman and Mr. Forbes as follows; FO Norman: So now you’re in possession of fish that is illegalMr. Forbes: Yeah, I know, yeah.FO Norman: Okay, that’s a whole ‘nother issue aside from the failing to release incidental catch.Mr. Forbes: Yeah, it’s --- but with us it’s a waste issue.

Why would you --- what is gained? I mean, they used to giveit to a food bank. They used to give it to the elders. They used to give it ---- somebody at least could useit. [40] I find that Mr. Forbes did, immediately accept responsibility for what he had done. However, with respect to his concern aboutwaste of these fish, I do note that when he retrieved and ultimately retained them, he did not intend to deliver the fish to those in need.

Their intended use – to be given to friends in the local community – is more consistent with a sports fisherman, than a food fishery. [41] In this regard, I noted on the Monitoring Program Occurrence Reports, at Exhibit 10, that one fisherman on July 17th, 2016 was

noted to have retained certain of its 38 bycatch fish to be retained by a deckhand, with the remainder donated to a church group. If Icompare this level of retention to a sports fisherman, and this is a – and I am returning now to the circumstances of the Lasqueti Sons, bycomparison, the daily limit for Sockeye is 4, and the possession limit is 8, and I should comment that that is as far as I remember from2018. I do not know what it was in 2016. PAST INVOLVEMENT WITH AUTHORITIES [42] Once in 1999, and twice in 2001 Mr. Forbes was issued $50.00 tickets for failure to return incidental caught fish to the water.

Inthe same period he was also given related warnings. These are so dated, the tickets paid are of very limited relevance. [43] However, Mr. Forbes has one conviction for an offence on July 12, 2016 under the Fisheries General Regulations. Mr. Forbeswas fined $2,500.00. The circumstances of that offence were not confirmed. DETERRENCE [44] The focus of Crown submissions were that it was because Mr. Forbes is an intelligent, highly capable, and respected fisherman,it was important to send a message of general deterrence by assessing a significant fine. [45] I understand the Crown’s submissions. However, Mr.

Forbes did not rely on his reputation in order to commit the offence, whichis typically central to that type of reasoning in related case law. [46] Mr. Forbes, at least, set a good example, by speaking truthfully to the Fisheries Officer, and admitting what he had done. This isa significant mitigating circumstance. [47] To a certain extent, an example has already been made of Mr. Forbes by the conviction alone. Exhibit 10 at trial includes 27Dockside Monitoring Reports in July 2016. At least 12 such occurrences involved certain of the restricted fish taken back aboard thevessel from offal. [48] Mr.

Forbes should be held to account for his failures that day, but we must take care in using him, alone, to be made an exampleof.

DAMAGE OR HARM DONE [49] The victim impact statement filed by Fisheries and Oceans stated that in 2016, Nass River Sockeye experienced returns so low that all commercial fisheries which impacted Nass Sockeye were operated under non-retention, non-possession rules after July 5th, 2016. [50] The victim impact statement was also fair to acknowledge that there will be some harm to incidentally caught salmon in anyseiner opening as follows; Seine vessels fishing for pink salmon can release other incidentally caught salmon such as chinook, Steelhead and chum with survivalrates in excess of 85% if catches are brailed and sorted carefully.

Similar survival rates are possible for Sockeye, as well, when treated ina careful manner. [51] The principal harm here is not measured by these specific fish, but the harm to the system, in particular the fair allocation of theresource. These fish were lawfully caught, and already dead, when recovered from the offal bin and retained. I share the concernsexpressed by Mr.

Forbes about sending these fish, as well as the others recorded in the monitoring reports at Exhibit 10, to the processingplant, presumably to be reduced to feed and oil in the same manner as the carcasses and guts remaining after other fish were dressed. [52] On my quick review there were some 1500 such fish separated into the offal bins at the dock, and that is a review of Exhibit 10which was the monitoring reports.

All participants in this regulated industry share some responsibility for the missed opportunity torecord these fish for conservation and compliance purposes, and to make better efforts to find some less wasteful way to deal with thisincidental by-catch. [53] But, Mr. Forbes did break the rules relating to retention and possession, and failure to report and record.

A failure to enforce therules mandating that they be recorded, and prohibiting them from being aboard a commercial fishing vessel, encourages individual self-determination of which rules should or should not be followed, and places a limited resource further at risk. DETERMINING THE RANGE [54] Crown seeks a global fine in the amount of $23,750.00 with a recommendation that a portion be allocated towards conservationand enhancement efforts. [55] Counsel for Mr.

Forbes suggests a global fine in the amount of $2,000.00 will achieve the purposes of sentencing. [56] From the submitted case law it is clear that any fine in such circumstances must not be merely be a cost of doing business in themanner in question. I cite R. v. Abbott, at paragraph 32 quoting R. v. Cotton Felts Ltd., and in turn the decision of Mr. Justice Linden in R.v. Hoffman-LaRoche Ltd. (No. 2) (1980), (ON SC), as follows; [57] The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere clapon the wrist.

The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might beminded to engage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims. [58] Some focus was given the circumstances of Mr. Schafhauser – who is also a local fisherman. I imposed a fine of $10,000.00 onMr. Schafhauser. Again, I should clarify, a penalty, it was part fine and part an order for enhancement, but the total penalty was $10,000.

[ 59 ] His circumstances were quite different. He broke a rule by having gear in the water before an opening, but more significantly he was not truthful about it when asked by the Fisheries Officer. [ 60 ] In contrast, Mr. Forbes was truthful with FO Norman. [ 61 ] Mr. Schafhauser also exceeded his allotted quota – although – to my recollection, in mitigation, he had given instructions to his agent to acquire additional quota, but he did not have that confirmation back from the agent that this had been secured before he fished in excess of his permitted quota. [ 62 ] Mr.

Schafhauser also had an earlier conviction with a fine of $6,000.00. He had also secured considerable financial benefit, insofar as he had successfully harvested some $12,000.00 in fish after he had been dishonest with the investigating officer. [ 63 ] Here, in this case, the benefit was limited to the value of these fish being given to friends to enjoy. [ 64 ] That Mr. Schafhauser’s offence involved dishonesty, makes those circumstances more serious. [ 65 ] Returning to my reflections on R. v.

Fitzpatrick , the regulation of a limited resource requires candour between those who compete for that resource and those who enforce the rules. [ 66 ] As for Mr. Schafhauser’s exceedance of quota, his exceedance was deliberate, with the mitigating circumstance that he expected his agent had already acted on his instructions to secure the additional quota. [ 67 ] Again, here, Mr. Forbes was honest. His actions to retrieve the Sockeye and Steelhead were deliberate, but they were in no way concealed.

His failures to record are, in one case a delay rather than any intention to conceal, and his failure to record (and report) the bycatch retrieved from the offal bin, appears limited to the somewhat narrow circumstances of his defiance of the new rules in 2016 to send such fish to the rendering plant. [ 68 ] I find that Mr. Forbes’ fine should be less than Mr. Schafhauser’s. I find that it should be more than the $2,000.00 submitted by Mr. Harvey. Indeed, I find it should be more than his first fine of $2,500.00. [ 69 ] Mr.

Forbes should understand that the general trend in sentencing in Fisheries cases is towards increasingly higher fines.

It is not uncommon in this courtroom with a single offence in the context of the sports fishery to see fines in the range of, sometimes below, but sometimes near $1,000.00 for possession of a single oversized halibut. [ 70 ] In two unreported decisions involving Queen Charlotte Lodge, Masset Registry 6327-1 and 6327-2-C, and Masset Registry 6335- 1, fines were imposed of $32,500.00 for a failure to record and the retention of processed sport-caught fish and a later fine of $47,500.00 for failure to properly respond to a guest and guide’s retention of an oversized Halibut. [ 71 ] I do not use those cases as comparisons to the circumstances here, but just to say that significant fines are awarded in Fisheries cases, and that trend continues. [ 72 ] The reality is that there has been a necessary change both in conservation and enforcement.

And in the enforcement context, a more rigid stance is being taken because of those concerns, either that the resource is in jeopardy, or perhaps more critically, because any certainty about its current sustainability may not be known. In that circumstance, one must follow the rules or face significant consequences. [ 73 ] In all the circumstances I impose a total penalty of $7,500.00 in the following allocation of fines, and orders for conservation. [ 74 ] Count 1, a fine of $500; Count 2, a fine of $250; Count 4, a fine of $750; and pursuant to s. 79.2(

f) of the Fisheries Act , an order that a payment be made to the conservation enhancement efforts in the amount of $3,000 with respect to Count 1, and $3,000 with respect to Count 4. [ 75 ] I will give Mr. Forbes until April 1st, 2022 to pay those amounts, and that is just my own reflection, it is my understanding it is around March that the next fishery, the herring fishery may open in the south, and that would then be the beginning of the next season, and by allowing until April 1st, 2022, that provides Mr. Forbes three full seasons of fishing to pay those amounts. [ 76 ] This concludes my reasons for sentence.

Thank you. (REASONS CONCLUDED) [1] This heading has been inserted to this transcript of oral reasons. The “heading” was read in court (and referenced in the transcript) as “By way of introduction, …“. Similarly the next (and all) headings were summarized in the oral reasons rather than read as a heading. For example, the heading “Principles of Sentencing” was read out as “I will speak briefly to the principles of sentencing ….”.