R. v. Tram, 2019 BCPC 271

Citation: R. v. Tram 2019 BCPC 271 Date: 20191007 File No: 29852-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VAN DE TRAM REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Federal Crown: M. Houg Appearing for the Defendant: L. Taylor, Native Court Worker Place of Hearing: Prince Rupert , B.C. Date of Hearing: August 14, 2019 Date of Judgment: October 7, 2019

INTRODUCTION [ 1 ] The Defendant, Van De Tram (Mr. Tram), has pleaded guilty to the following Counts on Information 29852-1 which occurred between the 22 nd of May, 2018 and the 25 th of May, 2018:

a) Count 1 - Possession of fish caught in contravention of the Fisheries Act and Pacific Fishery Regulation , contrary to Section 33(1) of the Fisheries Act ;

b) Count 2 - Unlawfully setting fishing gear during a closed time, contrary to Section 25(1) of the Fisheries Act , and;

c) Count 3 – Unlawfully fishing during a closed time, contrary to

Section 63 of the Pacific Fishery Regulation and

Section 78(

a) of the Fisheries Act . [ 2 ] All of the Counts relate to fishing for and retaining prawns ( Pandalus platyceros ). [ 3 ] The Director of Public Prosecutions (the Crown) seeks the following penalties against Mr. Tram:

a) a monetary penalty of $25,000.00 divided as follows: I. a fine of $5,000 pursuant to

Section 78(

a) of the Fisheries Act , and; II. a payment order in the sum of $20,000 pursuant to

Section 79.2(

f) of the Fisheries Act

b) forfeiture of the fishing gear, including 249 traps and associated lines and buoys seized pursuant to

Section 72 of the Fisheries Act;

c) forfeiture of the proceeds of sale for the prawns seized and sold to French Creek Seafood, in the amount of $28,437.50 pursuant to

Section 72 of the Fisheries Act . [ 4 ] The Defence submits that:

a) the monetary penalty should total no more than $12,500.00 and Mr. Tram should be given three years to pay any amount imposed;

b) the fishing gear should be returned to Mr. Tram so he can continue to pursue his livelihood;

c) the sale proceeds from the prawns should be forfeited. [ 5 ] The Court thanks counsel for the Crown for an electronic copy of its submissions regarding the circumstances and the law, some of which are incorporated into these reasons. MR. TRAM’S CIRCUMSTANCES [ 6 ] Mr. Tram is a 59-year-old Vietnamese immigrant to Canada. He has been in Canada since at least 1999. He has a Grade 3 education he obtained in Vietnam. He has been married for 37 years and has nine children. [ 7 ] His father is deceased. His mother is 85 and lives in Vietnam. She is in poor health. Mr.

Tram has made trips to Vietnam to tend to her and has provided money to assist in her care. [ 8 ] He has been involved in the fishing industry for many years. In a good year, he can net, after expenses between $50,000- $60,000. [ 9 ] 2018 was not a profitable year for Mr. Tram. He had three major breakdowns on his vessel. His fishing gear was seized because of the offences before the Court. In 2019, he fished with rented gear but only netted around $30,000. [ 10 ] Mr. Tram describes commercial fishing as a stressful life and that it is hard to make a living.

He told the Court that he is getting old and his mind is not operating properly. He would like to retire from the fishing industry in 5 to 7 years. CIRCUMSTANCES OF THE OFFENCES [ 11 ] On May 3, 2018, Mr.

Tram left Prince Rupert on the fishing vessel Miss Toni to the prawn fishery in Fishery Management Area 3 (Area 3). [ 12 ] On May 21, 2018, Fisheries and Oceans Canada (FOC) announced that the fishery in Area 3 was closed as of 19:00 hours that date. [ 13 ] On May 24, 2018, Fisheries Officer Ruelle observed the Miss Toni apparently fishing for prawns in Work Channel, a location within Area 3. [ 14 ] As a result of those observations, on the morning of May 25, 2018, FO Ruelle and other Fisheries Officers went to that area in their patrol vessels to locate the Miss Toni and investigate further.

At 10:20 hours, while enroute to the apparent location of the Miss Toni, the Fisheries Officers located two strings of prawn harvesting gear in a location within Area 3. Both strings were marked or labelled as the property of the Miss Toni.

[ 15 ] Subsequently, the Miss Toni was located. Mr. Tram was on board and identified himself as the captain of the vessel. Mr. Tram confirmed that the two strings found earlier by the Fisheries Officers had been set by him and his crew. [ 16 ] When told by the Fisheries Officers that the Miss Toni was fishing in a closed area, Mr. Tram stated that he did not realize that Area 3 was closed. Shortly after that exchange, Mr. Tram used his onboard satellite phone to contact the FOC call center and placed the phone on “speaker”. Mr.

Tram and the Fisheries Officers heard the centre’s recorded message advising that the fishery closed as of 19:00 hours on May 21, 2018. [ 17 ] Mr.

Tram advised the Fisheries Officers of the location of five strings of prawn harvesting gear that had been set by the Miss Toni, confirming the locations of the two observed earlier. [ 18 ] The Fisheries Officers reviewed logbooks, which showed that the Miss Toni had harvested prawns on May 22, 23, 24, and 25, 2018. 909 boxes of prawns of varying sizes with a total weight of 11,544 lbs. were found on board. [ 19 ] The Fisheries Officers and another patrol vessel retrieved the five strings of gear still set. [ 20 ] The two strings seen earlier by the Fisheries Officers were recovered and the prawns captured in those traps were returned to the ocean. [ 21 ] Three other strings set by the Miss Toni were also recovered and the prawns captured in those traps were returned to the ocean. [ 22 ] The prawns found on board the Miss Toni were seized and subsequently sold to “French Creek Seafood” and a cheque for the proceeds of that sale, $28,437.50, was made payable to the Receiver General of Canada and provided to Fishery Officer Mott. [ 23 ] The strings of gear were also seized: being the 249 traps and related lines and gear.

PREVIOUS CONTRAVENTIONS [ 24 ] Between October 1999 and November 2005, Mr. Tram was issued “warnings” on five (5) occasions for violations of the Fisheries Act or Regulations . Those warnings were for various reporting or record keeping infractions. [ 25 ] Between November 2001 and May 2004, Mr.

Tram was convicted of seven (7) charges for fishing activities contrary to the Fisheries Act or Regulations including: a) “using illegal gear” on November 7, 2001 – $600 and $700 fines; b) “illegal possession” on July 12, 2001 – $500 fine; c) “using illegal gear” on October 26, 2002 – $300 and $1,000 fines; and d) “fishing in a closed area” on May 4, 2004 – $500 and $2,000 fines.

VICTIM IMPACT [ 26 ] The Crown submitted a Victim Impact Statement authored by Laurie Convey, Resource Management Biologist on behalf of Fisheries and Oceans Canada. [ 27 ] The Victim Impact Statement describes the following relevant points:

a) the prawn fishery is one of the most valuable in the Pacific Region and a very important resource to commercial and recreational users and is an extremely important First Nations’ food, social and ceremonial resource;

b) the commercial prawn fishery has made substantial changes to prawn harvesting methods over the years to protect and enhance the resource;

c) prawns have a unique life cycle, transitioning from male to female and then spawning before they die. That transition and spawning is closely monitored and informs FOC as to when a closure in an area is necessary to preserve the resource;

d) closures have been a common occurrence for over 30 years. Closures in an area are announced through a variety of means, including recorded messages on a dedicated telephone line, to ensure the commercial industry has knowledge of them and is able to comply;

e) illegal fishing during a closure affects the conservation and sustainability of the prawn resource, gives an unfair competitive advantage to those involved and gives incentive to others to disregard licencing provisions. [ 28 ] The Victim Impact Statement clearly outlines the fragility of the present fishery and the catastrophic effect caused by removing over five (5) tons of protected marine life intended to increase the resource in the medium to long term. THE LAW Statute [ 29 ] The following sections of the Fisheries Act have application here:

a) Forfeiture of things

(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. Forfeiture of fish

(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, inaddition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.

b) Disposal of forfeited things 73

(1) Subject to sections 75 to 77, any fish or other thing forfeited to Her Majesty under subsection 72(1), (2) or (3) shall be disposed ofafter the final conclusion of the proceedings relating to the fish or thing, as the Minister directs.

c) Return of things not forfeited 73.1

(1) Subject to subsection (2), any fish or other thing seized under this Act, or any proceeds realized from its disposition, that are notforfeited to Her Majesty under

section 72 shall, on the final conclusion of the proceedings relating to the fish or thing, be delivered to theperson from whom the fish or thing was seized.

d) Punishment not otherwise provided for 78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollarsand, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding oneyear, or to both; or

e) Continuing offences 78.1 Where any contravention of this Act or the regulations is committed or continued on more than one day, it constitutes a separateoffence for each day on which the contravention is committed or continued.

f) Orders of court 79.2 Where a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard tothe nature of the offence and the circumstances surrounding its commission, make an order containing any one or more of the followingprohibitions, directions or requirements: (

f) directing the person to pay Her Majesty an amount of money the court considers appropriate for the purpose of promoting the propermanagement and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat; Case Law [30] The Crown provided the following cases for the Court’s consideration:

a) R. v. Le 2019 BCPC 116;

b) R. v. Tang et al, unreported, Sechelt Registry 17427-1, June 20, 2018;

c) R. v. Thompson 2017 BCPC 351;

d) R. v. McKinnell Fishing Ltd. 2017 BCPC 236;

e) R. v. Ordano, unreported, Port Hardy Registry 15799-1, July 14, 2014; and

f) R. v. Kern, unreported, Port Alberni Registry 40028-3-C, Nov. 27, 2007. SUBMISSIONS Crown [31] The Crown acknowledged the mitigating factors of Mr. Tram’s guilty pleas, his cooperation with the investigation and hisremorse. However, the Crown also pointed to the aggravating factors of previous convictions and warnings given to Mr.

Tramassociated with his fishing and the positive duty on him, and all commercial fishers to ascertain and abide by fishing closures. [32] The Crown also relied on and referred to the cases provided in support of its position on sentence. [33] In Thompson, the Court reiterated the primary sentencing principles in fisheries cases saying at paragraph 25: [25] In R. v.

Martynuik, Campbell River Registry, December 1, 2015, I set out a number of general principles applicable to sentencingfor offences under the fisheries legislation and which are applicable to this case: [12] Counsel provided me with case authorities which collectively set out a number of general principles. I adopt the passage by JudgeBrecknell 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 that inhabit it, as well as for the use and enjoyment of all of the citizens of our community, our province, and our country…" [14] In the context of an offence under the Fisheries legislation, particular emphasis is placed upon deterrence, both specific and general, 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. [ 34 ] The principle of general deterrence may include forfeiture orders and imposition of monetary sanctions pursuant to

Section 78 and 79 of the Act . [ 35 ] In Thompson , the Defendant pleaded guilty to fishing during a closed time. The Defendant carried out fishing activities over a four (4) day period. The Crown sought fines of $7,000 and $1,000 on two of the counts. In addition, Crown sought a monetary penalty pursuant to

Section 79 of the Act , being the value of the catch made during the closed time. [ 36 ] The Court in Thompson imposed fines of $5000 and $1000 and ordered a monetary penalty, but less than the total gross value of the catch. [ 37 ] In Kern , the Defendant pleaded guilty to a count of fishing during a closed time. He was a “repeat offender”. The Court imposed a monetary penalty totalling $12,500 (equivalent to $15,200 today) divided between a

Section 78 fine of $2,500 and a

Section 79 levy of $10,000. [ 38 ] In Ordano , the Defendant pleaded guilty to fishing during a closed time. He had no previous convictions. The Court accepted the joint submission for a fine of $5,000. [ 39 ] In McKinnell Fishing Ltd. , the Defendant was sentenced for five (5) counts of fishing during a closed time. The Defendant sought a conditional discharge. The Crown sought a fine of $50,000. No fish were caught because the enforcement officers interrupted the activities. The Defendant had no previous violations.

The Court imposed fines totalling $28,000, emphasizing the need to strongly deter any fishers from violating closed fisheries. [ 40 ] In Tang and Others , Mr. Tang and several others were fishing during an “open Rockfish fishery” and had many more Rockfish than allowed. The Court noted that the Court and the Defendants are amongst those who are to be “stewards of the environment” for all present and future members that are to enjoy and benefit from the ocean’s bounty.

Fines between $1,000 and $4,000 were levied on the Defendants, all of whom had no previous fishery infraction history. [ 41 ] In Le , the Court provided a thorough review of sentencing principles and sanctions available for convictions for several offences committed in the course of improper fishing practices. The Court imposed monetary penalties totaling $20,000 (divided between

Section 78 and 79) and forfeiture of the gear seized. Defence [ 42 ] Defence submissions on behalf of Mr. Tram can be summarized as follows:

a) the breach was inadvertent because he forgot about the closure. When confronted, he was immediately remorseful and cooperative with the Fisheries Officers,

b) he had made earlier attempts to obtain information on the closures by satellite phone but the reception was poor. However, he did not exercise the proper due diligence;

c) he accepts there must be a penalty but; I. the fines proposed by the Crown are too high given his financial circumstances, II. he needs his gear returned in order to pay any fines imposed, III. he does not oppose forfeiture of the sale proceeds of the prawns.

d) he will need time to pay any fines but he hopes to retire from fishing in 5 to 7 years. DISCUSSION [ 43 ] The Crown and Defence point to Mr. Tram’s cooperation and his remorse as mitigating factors. The Court accepts that his cooperation with the Fisheries Officers at the time and his acceptance of responsibility by pleading guilty are both mitigating factors and have saved both FOC and the Court time as well as financial and human resource expenditures. [ 44 ] However, the Court does not accept that Mr.

Tram’s expressed remorse has to do with his genuine embarrassment in inadvertently illegally fishing as compared to the embarrassment of being caught in the act and having to deal with the consequences that flow from that. [ 45 ] In cases involving breaches of regulated and licence resource harvesting legislation and subsidiary regulations it is imperative that the Court strongly denounce the illegal activity.

It must also impose penalties sufficient to deter both the offender and others in the same industry from participating in further resource decimating activities. [ 46 ] There are two comments in Thompson that apply to this case:

[53] In Mr. Thompson’s case, the need for deterrence is a significant factor that looms large. It is important that individuals who are careless and say, “I’m sorry - I just didn’t know” are not rewarded for that carelessness. To do so would encourage others to refrain from taking the necessary steps to inform themselves of the laws and regulations applicable to their particular area of the fishery… … [55] Furthermore, I consider that he has had some lucrative years but he has had some years in which his income was extremely modest.

I also consider that while a thief should be deprived of his loot, a thief does not incur cost of goods sold. Mr. Thompson incurred costs to obtain the fish and I find that his monetary benefit should be assessed on an amount that recognizes this but that is still sufficient to have a deterrent effect. [ 47 ] Mr.

Tram is an experienced commercial prawn harvester having been in the fishing industry for over 25 years including almost two decades in Canada. [ 48 ] He is well aware that the prawn fishery in the Pacific Region is a highly managed and regulated resource meant to protect the long-term sustainability for all of those who access it. Including the present convictions, Mr. Tram has breached the Fisheries Act or its regulations 15 times in a variety of ways. [ 49 ] His illegal fishing did not extend past the closure by a few hours.

He fished illegally for several days and presumably would have continued fishing had the Fisheries Officers not interrupted it. [ 50 ] Mr. Tram’s harvesting was plentiful and would have grossed him over $28,000 or even more depending when the Miss Toni reached its capacity and had to return to port. [ 51 ] He was well aware of how he could inform himself of closures as demonstrated by his ability to call the FOC hotline without any difficulty when the Fisheries Officers were present.

His excuse that there were satellite phone reception problems that prevented him from confirming the closure rings hollow given that he continued fishing for over 80 hours after the closure commenced. [ 52 ] Although the financial penalties sought by the Crown are both reasonable and within the range of penalties in similar cases the Court must also consider Mr. Tram’s financial circumstances both now and in the future to assess his ability to pay, even if given considerable time to do so. [ 53 ] The Crown’s position on forfeiture of the fishing equipment is a reasonable submission in the circumstances.

However, the Court must also take into consideration that Mr. Tram’s only vocation is fishing and that he will need fishing gear in order to pay the financial penalties that must be imposed and which will, when paid; provide some recompense for the harm done. As such, the fishing gear will be returned to Mr. Tram. [ 54 ] There is no contest concerning forfeiture of the sale proceeds from the catch. DECISION [ 55 ] On Information 29852 there will be the following orders, concurrent with regard to all three Counts: 1. Mr. Tram will pay a fine of $5,000 pursuant to

Section 78(

a) of the Fisheries Act . He will have until June 30, 2020 to pay that fine. 2. Mr. Tram will be subject to a payment order in the amount of $16,000 pursuant to

Section 79.2(

f) of the Fisheries Act . He must make payments in the following amounts on or before the following dates: a) $4000 on or before June 30, 2021; b) $4000 on or before June 30, 2022; c) $4000 on or before June 30, 2023; d) $4000 on or before June 30, 2024. [ 56 ] All of the payments, pursuant to

Section 79.2(

f) of the Fisheries Act, shall be used for promoting the conservation and protection of prawns ( Pandalus platyceros ) and their habitat in Pacific Fishery Management Area 3. [ 57 ] The seized fishing gear, including 249 traps and associated lines and buoys will be returned to Mr. Tram pursuant to

Section 73.1(1) of the Fisheries Act . [ 58 ] The sale proceeds for the prawns seized and sold to French Creek Seafood, for $28,437.50 is forfeited to Her Majesty and paid to the Receiver General pursuant to

Section 72 of the Fisheries Act . __________________________ M.J. Brecknell Regional Administrative Judge

Northern Region Provincial Court of BC