R. v. Blackburn, 2023 BCPC 35

Citation: R. v. Blackburn 2023 BCPC 35 Date: 20230221 File No: 30459-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. ERIC JOSEPH BLACKBURN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: P. Campbell Counsel for the Defendant: E. Murphy Place of Hearing: Prince Rupert , B.C. Date of Hearing: November 1, 2022 Date of Judgment: February 21, 2023

I. INTRODUCTION [ 1 ] Red sea urchins are spherical, with a diameter of up to 18 centimetres and p ointy spines reaching 7 to 8 centimetres long. They are a traditional food for British Columbia coastal First Nations, who also harvest them for social and ceremonial purposes. [ 2 ] British Columbia is home to Canada's only commercial red sea urchin fishery.

SCUBA divers harvest red sea urchins and deliver them to processing plants, where the roe is extracted, treated and packaged for sale in Japan, Europe and North America as "Uni." [ 3 ] Red sea urchins often live in ocean depths from 4 to 18 metres, in or near underwater kelp beds.

SCUBA divers harvest them using a tool referred to as a "rake." SCUBA divers collect the red sea urchins and place them in a mesh bag that, once full, can be sent to the surface with a float. [ 4 ] In British Columbia, SCUBA divers who commercially harvest red sea urchins are typically paid based on the number of red sea urchins they harvest.

As a result, the focus of the SCUBA divers is on gathering the maximum number of red sea urchins available in a particular location. [ 5 ] On October 16, 2018, 26 year-old Andrew Connor Brown, an occupational SCUBA diver employed as a red sea urchin harvester with the vessel Diver City , drowned one meter below the surface in the Hecate Strait, approximately 200 kilometres south of Prince Rupert, British Columbia. Known by his middle name Connor, he grew up in Ontario. The youngest son of Jane and Ted Brown, Connor loved life and had a great sense of adventure.

By all accounts, Connor was an eager, energetic, empathetic, loyal and caring person. He had a big grin, a keen sense of humour, and a good work ethic, he was fun to be around. He grew up on the water, was a competent swimmer, and had his boating licence in Ontario at the earliest age possible. Connor's girlfriend Kris, his parents, two older brothers, grandparents, aunts, uncles, cousins and friends loved him dearly. Approximately 600 people attended his celebration of life. [ 6 ] Michael McGee, Connor's co-worker and fellow red sea urchin harvester, found Connor unresponsive and entangled in kelp.

Ninety-one minutes had passed since Connor had entered the ocean. Connor's SCUBA equipment was only on one shoulder, consistent with an attempt at self-rescue. [ 7 ] Connor was working on a three-person crew that included Mr. McGee and the master of Diver City , the defendant Eric Joseph Blackburn. 678531 BC Ltd. owned Diver City . Michael Harvey Juergen Steinmann was a director of 678531 BC Ltd. [ 8 ] Dr. Jason Doyle, a pathologist, performed Connor's autopsy.

He determined the cause of death to be drowning as there was no evidence of an embolism or decompression illness. [ 9 ] Forensic examination of Connor’s diving equipment found it was working correctly. His air tank was two-thirds full, with air suitable for breathing. Connor's dive watch showed that his dive had been shallow, with a maximum depth of 6.1 metres, and that he had been one metre below the surface for approximately 70 minutes before Mr. McGee brought him out of the water.

Connor's dive watch also confirmed he last surfaced 14 minutes into his dive. [ 10 ] It remains a mystery why Connor, a fully qualified occupational SCUBA diver, drowned at a depth of one meter, with two-thirds of the air in his tank remaining. [ 11 ] What we do know is that to mitigate the risks to their employees, in October 2018, all British Columbia employers of commercial SCUBA diving operations were subject to the Workers Compensation Act , RSBC 1996, c. 492 (“the Act ”) and the Occupational Health and Safety Regulation , BC Reg 296/97 (“OHS regulation”).

As such, a procedure to enable an underwater diver in distress to be immediately identified and assisted, consistent with

Part 24 — Diving, Fishing and Other Marine Operations of the OHS regulation, was required to be operative on all commercial vessels. On October 16, 2018, the crew of the Diver City , supervised by Mr. Blackburn, failed to use any such procedure. [ 12 ] Mr. Blackburn and Mr. McGee did not know when or for how long Connor was in distress because Connor and Mr. McGee were not in visual contact as required by the OHS regulation. According to his “dive profile” (the computerized record of the dive), Connor was at the surface from the 14 to the 16 minute mark.

He was changing depths for about 6 more minutes until the 22 minute mark when he stopped moving. Connor's dive watch confirmed that he surfaced twice in the 91 minutes he was in the ocean: first, 2 minutes after he entered the water and again 12 minutes later. The maximum depth on Connor's diving watch was 6.1 metres, which is shallow for SCUBA diving. At the 21 minute mark, Connor stayed at the same depth until his body was recovered at the 91 minute mark. Mr. McGee and Mr. Blackburn began looking for Connor 46 minutes after he stopped changing depths.

When they started looking for him, Connor had likely already drowned. [ 13 ] Almost 22 months after Connor's tragic and avoidable death, Mr. Blackburn, along with 678531 BC Ltd. and Mr. Steinmann, were charged in connection with Connor’s death. The Guilty Pleas [ 14 ] On May 2, 2022, some 42-plus months after Connor’s death, Mr.

Blackburn, in his capacity as Connor's diving supervisor, entered guilty pleas to counts 2 and 5 of the information: Count 2 Eric Joseph Blackburn, from the 15th day of August, 2018 to the 18th day of October, 2018, inclusive, at or near Prince Rupert, Province of British Columbia, failed to ensure the health and safety of workers under his direct supervision, contrary to section 117(1) (

a) of the Workers Compensation Act , RSBC 1996, c 492 .

Count 5 Eric Joseph Blackburn, from the 15th day of August, 2018 to the 18th day of October, 2018, inclusive, at or near Prince Rupert, Province of British Columbia, failed to ensure the divers maintained constant physical or visual contact with each other, contrary to

section 24.33 of the Occupational Health and Safety Regulation , BC Reg 296/97 , and

section 213 of the Workers Compensation Act , RSBC 1996, c 492 . [ 15 ] Prince Rupert Community Corrections Probation Officer Duong Nguyen completed a comprehensive Pre-Sentence Report concerning Mr. Blackburn on October 27, 2022. I heard sentencing submissions from counsel on November 1, 2022. Mr. Blackburn's Admissions [ 16 ] Mr. Blackburn admits that he failed to ensure the health and safety of workers contrary to s. 117 of the Act . As the supervisor of the Diver City, Mr. Blackburn admits he was not, as required by s. 117 of the Act , knowledgeable about the provisions of

Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation. As a result, he failed to comply with those provisions. [ 17 ] Mr. Blackburn admits he was not qualified or sufficiently trained to act as a diving supervisor. Being unfamiliar with

Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation , Mr. Blackburn did not require divers under his supervision to comply with the provisions. Mr. Blackburn told the RCMP: “I didn’t even know half of these regulations were there.” He told the RCMP that he would read

Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation before he went back out. [ 18 ] Mr. Blackburn admits that on October 16, 2018, he failed to direct the dive operation as follows: i. He failed to evaluate the hazards and to plan for the dive to address the risks. ii. He failed to ensure a safety system was in place to enable the immediate rescue of a diver in distress. Specifically, he failed to ensure the divers practiced buddy diving. He allowed Mr. McGee and Connor to dive far apart, so they could not maintain visual or physical contact.

He did not instruct them to maintain constant visual contact with each other and that if visual contact was lost, both divers were required to surface immediately. [ 19 ] Mr. Blackburn admits telling the RCMP that: i. No one in the industry comes close to following the rules for buddy diving. He thought “line of sight” meant his divers were in a line of contact with him, “I’m in the middle, and they can see me ... and if he comes up, he sees me.” His understanding of “line of sight” differed from the divers' ability to see each other underwater. He stated, “that’s a whole other world.” ii.

Seeing a diver’s bubbles from the surface was the only method he used on the Diver City to locate divers in the water. iii. He is never more than a minute away from his divers. He stated, “I’m never more than a minute away ... I got one guy over here, never more than a minute away.” [ 20 ] Mr. Blackburn admits that because the divers were permitted to dive without a safety system, there was no system in place as required by OHS Regulation to enable a diver in distress to be immediately identified and assisted.

Because no safety system existed, he did not know when Connor became distressed, and no attempt to rescue occurred until Connor had been in the water at the same depth for over 70 minutes. II. THE SENTENCES SOUGHT [ 21 ] The sentencing is contested. [ 22 ] The BC Prosecution Service seeks a $25,000 fine, the mandatory 15 percent victim surcharge levy, and two years of probation. [ 23 ] Mr. Blackburn, born in July of 1961, is unemployed due to ongoing psychological and physical medical issues. With little, if any, assets, he seeks a restorative justice-type sentence without a hefty fine. III.

THE FACTS Work Situation [ 24 ] 678531 BC Ltd. was the employer of Mr. Blackburn, Mr. McGee, and Connor. Mr. Steinmann hired Mr. Blackburn as the master and diving supervisor for Diver City . A vessel master employed by 678531 BC Ltd. hired Mr. McGee as a red sea urchin diver in September 2017. Mr. Steinmann hired Connor in September 2018 as a red sea urchin diver. Connor was the only one of the three certified by the Diver Certification Board of Canada as a SCUBA diver. [ 25 ] When Mr. Steinmann hired Mr. Blackburn, he knew Mr.

Blackburn was not qualified in SCUBA diving and did not have the required training or certifications of a diving supervisor. Mr. Blackburn was initially employed as the vessel master to operate the Diver City , not as the diving supervisor. Mr. Blackburn began acting as the diving supervisor when Mr. Steinmann was not on board the vessel. [ 26 ] During his time with 678531 BC Ltd., Mr. Blackburn did not seek or undertake the necessary training to become a Diver Certification Board of Canada certified SCUBA diver or diving supervisor. The result, which should have been evident to 678531 BC Ltd. and Mr.

Blackburn, is that Mr. Blackburn was in no way, shape or form qualified on October 16, 2018, to act as a diving supervisor. [ 27 ] When 678531 BC Ltd. hired Mr. McGee in September 2017, Mr. McGee did not have the required qualification or certification to act as an occupational SCUBA diver. Mr. Steinmann was unaware and did not confirm whether Mr. McGee was a qualified occupational SCUBA diver or if Mr. McGee had the required Diver Certification Board of Canada SCUBA diver certifications.

[ 28 ] Mr. Steinmann only went on one dive with Connor. It was on Connor's first day of employment. He reviewed with Connor procedures on the Diver City . Mr. Steinmann told Connor that when fishing for red sea urchins, he had to be close enough to see the other diver in the water. Mr. Steinmann did not tell Connor that when buddy diving, OHS Regulation required that he maintain constant physical or visual contact with the other diver. After Connor's first day working for 678531 BC Ltd., Mr. Steinmann delegated all supervision of Connor to Mr. Blackburn. Mr. McGee and Mr.

Blackburn were entrusted with the remainder of Connor's on-the-job training. [ 29 ] Mr. Blackburn had no formal training, qualifications or certifications from t he Diver Certification Board of Canada or any other accreditation agency . He was not a SCUBA diver. He did not have any first aid or oxygen therapy training as required by the OHS Regulation. He had roughly 40 years of experience operating and maintaining fishing boats. While on the ocean, operating and maintaining fishing boats is a very different industry than commercial SCUBA diving or the red sea urchin fishery. Mr.

Blackburn was not qualified, educationally or practically, to sufficiently carry out his duties as the diving supervisor of the Diver City . Key Statutory Considerations [ 30 ] Sections 1 and 106 of the Act sets out the definition of employer.

Section 1 defines an employer as: includes every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry; [ 31 ]

Section 13 defines an employer as: (

a) an employer as defined in

section 1 , (

b) a person who is deemed to be an employer under the compensation provisions or the regulations under those provisions, and (

c) the owner and the master of a fishing vessel for which there is crew to whom the compensation provisions apply as if the crew were workers, but does not include a person exempted from the application of the OHS provisions by order of the Board; [ 32 ] As the master of Diver City , Mr. Blackburn met the statutory definition of being Connor's and Mr. McGee's employer.

Section 115 of the Act sets out the general duties of employers. It requires all employers to provide their workers with the information, instruction, training and supervision necessary to ensure the health and safety of those workers in carrying out their work and to ensure the health and safety of other workers at the workplace. [ 33 ] Although Mr. Blackburn meets the statutory definition of being Connor's employer, the BC Prosecution Service and Mr. Blackburn have agreed that Mr. Blackburn is to be sentenced in his role as Connor's supervisor and diving supervisor. [ 34 ]

Section 117 of the Act requires all supervisors to know and comply with the Act and the Regulation applicable to supervised work.

Section 117 of the Act states:

(1) Every supervisor must (

a) ensure the health and safety of all workers under the direct supervision of the supervisor, (

b) be knowledgeable about this Part and those regulations applicable to the work being supervised, and (

c) comply with this Part, the regulations and any applicable orders.

(2) Without limiting subsection (1), a supervisor must (

a) ensure that the workers under his or her direct supervision (

i) are made aware of all known or reasonably foreseeable health or safety hazards in the area where they work, and (ii) comply with this Part, the regulations and any applicable orders, (

b) consult and cooperate with the joint committee or worker health and safety representative for the workplace, and (

c) cooperate with the Board, officers of the Board and any other person carrying out a duty under this Part or the regulations. [ 35 ]

Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation is the

section of the regulation dealing with commercial SCUBA operations.

Section 24.1 in the

definitions

section states: “diving supervisor” means a person having complete and direct responsibility for the diving operation who is knowledgeable and competent with the diving equipment, the diving operations in progress, emergency diving procedures, diving physics and physiology and medical aspects of diving; [ 36 ] As Connor's and Mr. McGee's diving supervisor, Mr. Blackburn needed to know and comply with

Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation, which set out the duties and responsibilities of a diving supervisor. Sadly, he neither knew nor complied with

Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation. The Dive on October 16, 2018

[ 37 ] On October 16, 2018, Connor and Mr. McGee entered the water at about 09:30 hours. They began harvesting red sea urchins in shallow water at the edge of a kelp bed near Dewdney Island, British Columbia. As of October 16, 2018, Connor had harvested red sea urchins on the Diver City for 20 days, resulting in a total of about 50 hours of work underwater as an occupational diver. [ 38 ] Connor and Mr. McGee dove separately. Neither used a lifeline or tether. They were not in constant physical or visual contact with each other or Mr. Blackburn. The only time Connor and Mr.

McGee saw each other underwater was when they happened to collide with each other. While underwater, they did not use any signal or audio device to communicate with each other or Mr. Blackburn. The only exceptions were the sound transmitted by Mr. Blackburn pounding on the Diver City hull and the divers' ability to use their urchin rakes to make sounds underwater. [ 39 ] After dropping Mr. McGee off in the ocean, Mr. Blackburn took Connor 45 to 60 metres away from Mr. McGee on the other side of a kelp bed. Mr. Blackburn positioned the Diver City in between the divers. The idea was that Mr.

McGee and Connor would work toward each other as they harvested red sea urchins. They were not buddy diving. Given their distance, the divers were not in constant physical or visual contact underwater. Their method of diving was contrary to the OHS Regulation. [ 40 ] Mr. McGee filled one bag with red sea urchins in the first 18 minutes. He then surfaced and gave the bag to Mr. Blackburn, who put the load on the deck of the Diver City . Mr. McGee continued fishing. Some 18 minutes later, at about 10:06 hours, Mr. McGee came onto the Diver City for approximately 5 minutes. On board, neither Mr. McGee nor Mr.

Blackburn could see Connor. They did not know where he was. Mr. McGee re-entered the ocean on the other side of the kelp bed about 60 to 90 metres from where he had surfaced 5 minutes earlier. [ 41 ] As Mr. Blackburn was moving Mr. McGee to the new location, he saw Connor surface. Connor shouted out “Blackie” – a nickname Connor used for Mr. Blackburn – and then Connor went back underwater. It was the last time anyone saw Connor alive. [ 42 ] Mr. Blackburn completed his drop of Mr. McGee and then returned to the approximate location where he had seen Connor surface. When Mr.

Blackburn arrived at the approximate spot where he had seen Connor surface, he could not find Connor's air bubbles. Mr. Blackburn began searching the area, back and forth, looking, without success, for air bubbles. He continued searching from the vessel. In Mr. Blackburn's experience, it was not uncommon for Connor to return underwater after surfacing if he could see that Mr. Blackburn would be a minute or two getting to him. [ 43 ] Mr. McGee surfaced approximately 21 minutes later, having filled a second mesh bag with red sea urchins. Sixty-two minutes had passed since he had first entered the water. Mr.

Blackburn picked Mr. McGee up, and together they began looking for Connor. Believing that Connor may have swum around the island, they looked for Connor's bubbles from the vessel. Mr. Blackburn advised Mr. McGee that he was unable to locate Connor. [ 44 ] Twenty-four minutes later, with no sign of Connor, Mr. McGee decided to go back into the ocean to look for Connor near where Mr. Blackburn last saw Connor. Once Mr. McGee entered the water, he almost immediately saw Connor upside down, his legs tangled in the kelp at the knee. Connor's equipment was still intact, holding Connor in the inverted position. Mr.

McGee did not have a knife. Nor did Connor. He resurfaced and got a knife from Mr. Blackburn. Mr. McGee dove back into the water. He cut Connor out of the kelp and unhooked Connor's remaining equipment. Mr. McGee brought Connor to the surface. Once on the Diver City , Mr. McGee and Mr. Blackburn began CPR. They were unable to resuscitate Connor. [ 45 ] At 11:08 hours, Mr. Blackburn called a “mayday” into the Coast Guard. Mr. Blackburn reported Connor's drowning and the location. A Coast Guard vessel arrived. Coast Guard members tried performing CPR and transferred Connor to their ship.

Paramedics, arriving later by helicopter, pronounced Connor dead at 13:42 hours . [ 46 ] Mr. McGee and Mr. Blackburn provided the RCMP with the coordinates of the location of Connor's SCUBA equipment that remained underwater. The Coast Guard transported Connor's body and personal effects to Prince Rupert. Standby Diver, The Buddy System And Communication Systems [ 47 ] Mr. Steinmann’s understanding of buddy diving was limited to requiring that the divers be close enough to see each other underwater.

He did not know or appreciate that they had to maintain constant physical or visual contact and that if they lost that contact, both must surface immediately. [ 48 ] Mr. Steinmann based his instruction to Mr. Blackburn and Connor on his flawed understanding of buddy diving. His instructions to them did not include any training or education that when employing the buddy diving safety system, buddy divers must remain in constant visual or physical contact and, if broken, both divers were required to surface immediately. [ 49 ] In spite of employing Mr.

Blackburn as a diving supervisor, 678531 BC Ltd. did not require Mr. Blackburn to read or be familiar with

Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation, even with Mr. Steinmann knowing Mr. Blackburn had no SCUBA training or experience. Consequently, Mr. Blackburn was unaware of the rules governing the use of buddy diving. Furthermore, Mr. Blackburn elected not to educate himself despite taking the job with 678531 BC Ltd. as a diving supervisor, notwithstanding the obvious possible fatal outcomes should something go wrong in the water. [ 50 ] Mr. Blackburn explained his understanding of buddy diving to RCMP investigators as “line of sight”.

He understood this to mean that the divers, once surfaced, had to be able to see him, not that the divers had to be in constant visual or physical contact with each other and both surface immediately if they lose that contact. In this respect, Mr. Blackburn told the RCMP that he believed his responsibility as a diving supervisor was limited to monitoring the location of the divers when they surfaced. [ 51 ] Parts 24.33 to 24.35 of the OHS Regulation set out the specific rules about when and how buddy diving can be employed.

The OHS Regulation requires continuous monitoring during every dive operation to ensure divers in the water are safe: a dedicated tender from the marine vessel or another diver in the water. Buddy diving intends to ensure divers can provide emergency assistance to one another without delay. The latter method is called “water standby,” or buddy diving.

[ 52 ]

Part 24.33 requires that before a diving supervisor can allow divers to employ the buddy system, the supervisor must, among other requirements, ensure the divers are close to each other at all times to be able to effect a rescue. When using SCUBA, the divers maintain constant physical or visual contact with each other. A dive supervisor cannot employ buddy diving when any hazards are present. Hazards include the possibility of entanglement with underwater objects, like a kelp bed. [ 53 ]

Part 24.35 requires divers employing the buddy system to always remain in constant visual or physical contact and for each diver to surface immediately if they lose contact. [ 54 ] While being interviewed by the RCMP, Mr. McGee stated that, in theory, he and Connor were dive buddies, but, in practice, they were so far apart that they never saw each other. He stated that the only time he saw Connor was when they happened to collide. They would surface and find a new area when that happened because “we picked this one clean”. [ 55 ] Mr.

McGee also told police that “each guy is his own entity” on a vessel and that when on a boat, “I’m doing my job, and he’s doing his”. Mr. McGee stated that each diver is responsible for their own safety. Very troubling, he further remarked that practicing buddy diving in the urchin industry is impractical. [ 56 ] Mr. McGee and Mr. Blackburn both told police that they believed the dive on October 16, 2018, was a buddy dive or, as Mr. Blackburn referred to it, a “line of sight” dive. Nevertheless, Connor and Mr. McGee were sometimes over 60 metres apart and not in visual or physical contact with each other or Mr.

Blackburn. There was no other safety system, such as audio communication as required by legislation or a lifeline to the diver's tender. There was no system in place to monitor the divers while underwater. Connor had no way to signal his distress to Mr. McGee other than potentially banging his urchin rake on a rigid metallic surface. He had no way to signal his distress to Mr. Blackburn other than knocking on the hull of Diver City.

SCUBA Equipment [ 57 ] On October 18, 2018, divers with the RCMP underwater recovery team recovered Connor’s remaining dive equipment, including his SCUBA tank and its attached regulator. They found the equipment ensnared in a kelp forest reef. On the ocean floor below, RCMP divers found Connor's weighted dive vest, mesh urchin bag and urchin rake. His mesh urchin bag contained very few urchins. [ 58 ] Connor's SCUBA tank had 2000 psi of air, consistent with it being two-thirds full of air. Chemical testing of the air in Connor's SCUBA tank found it suitable for breathing.

A SCUBA expert examined Connor's dive equipment and determined it was functioning correctly. [ 59 ]

Section 24.38 of the OHS Regulation lists the equipment that commercial SCUBA divers must use, including a suitable knife, exposure suit and an inflatable Buoyancy Control Device. An inflatable Buoyancy Control Device provides a diver with more positive buoyancy than relying solely on inflating their dry suit. [ 60 ] The diving supervisor is required to ensure divers can function safely underwater. Before diving begins, the diving supervisor must confirm that the diver has all the necessary SCUBA and safety equipment. Neither Connor nor Mr.

McGee dove on October 16, 2018, with an inflatable Buoyancy Control Device. The dry suit used by Connor was an exposure suit containing an air valve that allowed the suit to be used as a buoyancy device. Connor also used a back plate that supports the air tank but does not assist with controlling buoyancy. [ 61 ] Mr. McGee was not carrying a knife when he found Connor entangled in the kelp. Connor did not have a knife on his person. Mr. Blackburn told police that he told his divers to carry knives but confirmed that on October 16, 2018, he saw Connor’s knife on the deck of the Diver City . [ 62 ] Mr. McGee, Mr.

Blackburn and Mr. Steinmann were all aware of the hazards posed by kelp. Mr. McGee told police that historically he expects ninety percent of divers usually did not carry knives because there was no kelp in prior years, but this year, “it’s everywhere”. Steinmann told police, “when we’re down SCUBA diving, this is an inherent risk ... when we get caught in kelp, we have knives we cut ourselves out, if you don’t have a knife if you can’t reach it or something, I’ve chewed myself out of a piece of kelp”. Other Relevant Sections Of The OHS Regulation [ 63 ]

Section 24.18 of the OHS Regulation requires every commercial SCUBA diving operation to have an assigned diving supervisor. The

section describes a diving supervisor's responsibilities to evaluate hazards, plan the dive, brief the crew, ensure all needed equipment is available and in good working condition, and control the entire diving operation. The

section also requires a diving supervisor to prepare a detailed plan of the diving operations which must be given to the worksite employer before diving commences. Finally, the

section requires that the diving supervisor remains in the dive area during diving operations, delegates the supervisory responsibilities to another diving supervisor if necessary to enter the water and suspends diving operations if conditions become unsafe. [ 64 ]

Section 24.10 of the OHS Regulation required 678531 BC Ltd. and Mr. Blackburn to ensure that each diver had a current medical certification for occupational diving from a physician competent in diving medicine before starting a diving operation. Only Connor had the current medical certification. [ 65 ]

Section 24.12(3) of the OHS Regulation required Mr. Blackburn, the diving supervisor, and Mr. McGee and Connor, the divers, to be trained in CPR, oxygen (O 2 ) therapy, and diving accident management. Neither Mr. Blackburn nor Mr. McGee had any such training. Connor was the only member of the Diver City crew with the required training. [ 66 ]

Section 24.13(1)(

a) of the OHS Regulation required the employer and the diving supervisor to ensure all divers met the minimum requirements of the Canadian Standards Association's Competency Standard (CSA Z275.4-97) Competency Standard for Diving Operations . The Diver Certification Board of Canada audits and accredits occupational diver training establishments which can provide training which will allow candidates to achieve the competencies required by s. 24.13(1)(a). Connor was accredited as an occupational diver in 2017. Mr. McGee, while a long-time SCUBA diver, had no formal training in occupational SCUBA and was not

accredited as an occupational diver. In other words, neither Mr. Blackburn nor Mr. McGee should have been involved in harvesting red sea urchins on October 16, 2018. [ 67 ]

Section 24.14 requires each diver, and each dive supervisor, to keep a diving logbook. The diving supervisor is required to sign each diver's logbook. Police seized Connor's dive logs which contained no record of any dives he completed on the Diver City . Mr. McGee advised that he kept fishing logbooks but did not keep dive logbooks. Mr. Steinmann stated that no one makes divers print out manuals and sign them daily. He noted the divers are supposed to write all the daily things in their logbooks, but "they’re not doing it". [ 68 ]

Section 24.19 of the OHS Regulation requires the diving supervisor to conduct a safety briefing before each dive. The topics to be covered during the meeting include hazards which may be encountered during the dive, the intended duration of the dive, the maximum depth to be reached, decompression procedures to be followed, the location of other divers, the work to be done, specific recall signals, and emergency procedures to be followed. While Mr.

Blackburn did discuss the areas of the dive and conditions of currents and tides before dives, the briefing he conducted on October 16, 2018, was deficient in that it did not include a safety plan to have Mr. McGee and Connor stay in constant visual or physical contact and, if physical or visual contact was broken, that Mr. McGee and Connor had to surface immediately. Other Deficiencies That Are Unconnected To Connor's Death [ 69 ] Mr.

Blackburn did not have his Small Vessel Operating Proficiency certification and was, therefore, non-compliant with the Marine Personnel Regulations of the Canada Shipping Act , S.C. 2001 c. 26 . [ 70 ] The Diver City returned to Port Edward via tow on October 17, 2018. It was at the public pier, unattended for two days. The RCMP seized the Diver City , pulled it out of the water, and secured it at their compound on October 18, 2018. Police obtained a Warrant to Search , authorizing them to search the Diver City .

Transport Canada assisted with the search and found the following safety and equipment deficiencies: • There were only two lifejackets aboard for the three crew members. • No buoyant heaving line of at least 15 metres. • The lifebuoy had no line attached. • There was no watertight flashlight. • The six flares had expired. • The life raft had last been inspected in December 2013 and was overdue. • The battery on the emergency beacon expired in June 2017. • No immersion suits. • No sound signal. • Two fire extinguishers, one expired and no extinguisher for the engine area. • The fire bucket in the engine space had no lanyard. • No records of any drills. • No paper chart.

IV. VICTIM IMPACT STATEMENTS [ 71 ] Victim Impact Statements assist the Court in assessing the gravity of the harm arising from the offence. [ 72 ] Connor's parents prepared and read Victim Impact Statements to the Court. Their incredible love for their son is evident in their words, as is their desire to see something positive come from his death. The pain they both have experienced over the past 52 months cannot be expressed in words.

I am told, and I accept, that Connor's girlfriend Kris, his brothers, other relatives, and many friends still miss and grieve for him. [ 73 ] A sentencing is not the same as a coroner's investigation or inquest. In their Victim Impact Statements , Jane and Ted expressed their desire for a coroner’s investigation or inquest into Connor’s death. Coroner investigations and inquests are entirely different from criminal or regulatory offence prosecutions.

As explained on the British Columbia Coroners Service website, there are distinct procedures for coroner’s investigations and inquest s. [ 74 ] In the case of a coroner’s investigation, when a death is reported to the coroner, they have the authority to collect information, conduct interviews, inspect and seize documents and secure the scene. Upon conclusion, the facts determined by the investigation are released in a report.

It sets out the coroner's findings, including a cause of death and, whenever possible, recommendations to prevent future deaths. [ 75 ] If the Chief Coroner determines that it would be beneficial for: i. addressing community concern about a death,

ii. assisting in finding information about the deceased or circumstances around a death, or iii. drawing attention to a cause of death; if such awareness can prevent future deaths, an inquest may be held. [ 76 ] On the other hand, an inquest is mandatory if the deceased was in the care or control of a peace officer at the time of their death unless the Chief Coroner exercises the discretion provided under

Section 18 of the Coroners Act . [ 77 ] An inquest serves three primary functions: 1. To determine the facts related to a death, including how, when, where and by what means the individual came to their death, as well as a classification for the death. 2. To make recommendations, where appropriate and supported by evidence, to prevent deaths in similar circumstances. 3. To ensure public confidence that the circumstances surrounding the death of an individual will not be overlooked, concealed or ignored. [ 78 ] The presiding coroner ensures the jury maintains the goal of fact-finding, not fault-finding.

A Verdict in the form of a written report is prepared upon the inquest's conclusion. It includes the classification of the death and any jury recommendations on how to prevent deaths in similar circumstances. [ 79 ] The BC Coroners Service investigates over 5,000 deaths annually. Of that number, less than one percent result in an inquest. While every death represents the loss of a loved one, inquests are not routine. On average, British Columbia has only 8 to 14 inquests per year.

Jane Brown's Victim Impact Statement [ 80 ] Putting into words how she and others have been affected by Connor’s death was a stressful and daunting task for Jane. As she pointed out, waiting more than four years for the court process to conclude kept taking her back to the beginning and all the traumatic feelings. Some excerpts from Jane’s reading of her Victim Impact Statement gives perspective to the profound impact Connor’s death has had on her and to her desire to see positive change in the red sea urchin harvesting industry: Connor had such an authentic way about him.

He loved life and adventure and was fiercely loyal to his many friends. His sense of humour was priceless. He had a knack for pointing out the absurd in so many situations that would always take me by surprise and make me laugh. He seemed to be a great connector of people he loved. His eyes and smile exuded love, laughter, empathy, with at times a mischievous side. If you have ever watched the movie Rudy, Connor was Rudy. The smaller one who had heart and determination and never gave up. … In the summer of 2018, I had been out to Vancouver to visit Connor on his 26 birthday, which was July 15.

Saying goodbye was so sad as we always have so much fun together. He calls me Mama Dukes and Dukes for short. Little did I know that would be the last time I would see him, laugh with him, and hug him. Three months plus one day, October 16, he was gone. Bang, my life crumpled. However, I did not find out until October 17 as the boat did not have Connor’s contact info. Friends of his arranged for the RCMP to get our info. That evening I was home by myself as my husband and middle son had gone to a Raptors game. There was such a loud knock at the door which scared me.

It was a dark rainy night, and at the door were two police officers. My heart felt like it stopped. The female officer asked if I was a person with a different name. I was so relieved that I said, “No,” and started to close the door. They stopped me and then called me by the correct name. Somehow there was confusion as to whether I was home alone. They thought that someone was with me, and I was trying to find out if there had been a car accident involving my husband and son. It was like being in a bad movie.

There were two officers, and the one officer came right out with it. “There has been a commercial diving accident and Andrew is dead.” Connor’s legal first name is Andrew. I asked, “Connor?” and they said, “Yes.” My next question was to ask if they had him, which was yes. My whole body then started to shake uncontrollably. They were asking me what I wanted them to do, which made no sense to me. The one officer went and picked up a friend to be with me until my husband returned.

My body continued to shake even after another friend arrived. … Losing a child is one of those things that you think that you have a good idea how the parents feel. Although you have a good idea, I would have to say for many years, I had underestimated the magnitude of it. Even the physical pain is overwhelming. Your world stops, and you can hardly believe that life is still going on. Simple things, like seeing the sun rise or set, would send me into unstoppable crying because it was another day that Connor was not in. It felt like there was a huge physical hole involving the front of my body.

Things like going to the grocery store were overwhelming. I would get panicked shopping because I would see favourite things of Connor's that I would normally buy for him. It was and still can be painful. The longing and wishing that he would walk back through the door were also overwhelming. I felt so broken that I didn’t know how I was going to survive. … People would tell me how strong I was, and I would feel like a fraud because I was a long way from strong. What I finally realized was that I am resilient, and so was Connor. The counsellor said to just keep talking about Connor, and so I did.

It seems to give other people permission to tell you their stories of Connor, which is so welcomed by me.

… We are in a family business, so it is extremely difficult to put the effort in that is required. My husband and my other two sons run restaurants and were not able to be at work. This had a financial impact as well because we had to pay more employees to pick up the slack, as well as not having a visual eye on how it was running. I am in charge of payroll and was not able to work. … When I heard that Connor surfaced and was not picked up, I was and am haunted by that imagery. I was horrified that he was left because he didn’t look in distress. I was really angry that this was Canada, and why was it so unsafe?

Where was the enforcement? It feels so sad but makes me so upset that people are dying in the urchin harvesting industry, and there has not been change. In other industries, a fatality seems to be a much bigger deal. I can definitely say that to me, Connor is a big deal. Fatalities are examples of failure that we need to be learning from, or we are once again failing the victim. Coming out to B.C. for the trial, which became a guilty plea, threw me back into what I call “The Hole”. It's like being at the bottom of a well, and you can’t get out.

I do manage to surface, and then there is the Gardiner Hearing, and the despair seems magnified because I relive losing Connor. The day was different than what we had heard and, in fact, was worse. It brought about so many unanswered questions, which raised even more anxiety. We had not known the results of his watch dive profile. It was again haunting to realize that Connor came to the surface for two minutes. It is hard to even stand in one place for two minutes. It is so painful to know that he was attempting to do things to keep himself safe. Besides seeing what was going on, was he wanting his knife?

Was his bag or rake stuck in kelp, and he needed his knife, or did he just realize that he had forgotten it? It breaks my heart that Connor was so new to this field, yet he was not given the proper supervision. I know that he was a strong and competent diver, but not having experience with this type of diving and the inherent risk of kelp, in my opinion, felt careless. The fact that he died alone with no means of communication, and knew that he wasn't going to be rescued, makes me cry. When we were in Prince Rupert, we met Connor's fellow diver.

When I was explaining different ways and technologies that we had learned to keep the divers safer, I was met with so much resistance to change that I could hardly breathe. At this point, I realized that Connor did not stand much of a chance of changing things to be safer. It felt like if you don’t like it, just quit. The way we do it is the only way. … After the guilty plea Mr. Blackburn, through his lawyer, asked if he could speak with us. I was nervous but we agreed to meet with him, at which time he apologized to us. It was helpful as it did feel genuine.

Of course, it doesn’t make things all better, as I still struggle with the fact that Connor was not picked up. It was appreciated and does dampen the pain and anger, which is a constant battle in the healing process. … It is our hope to have an inquest to find ways to help make diving safer. Connor losing his life when he was a safety-conscious diver makes it all the more important to us that his life makes a difference. For his friends who are fellow divers, to be safer, I know, would be important to him. The kid was such a loyal friend to many, so there isn’t a doubt in my mind that he would want change.

In the meantime, what if the change started now, within the urchin community? The optimistic, hopeful side of me thinks that even though things have not changed for many years, that Connor’s loss of life could be the turning point. What if Connor’s life was honoured by the divers utilizing the technologies that are available? Communication devices have been around since the 1990s, and the advancements have been great in battery life, squelch reduction and background interference. Hardwire communication through a lifeline, I have been told by experts, is the best.

I think so often how different things could have been if Connor could have said that he was in trouble. In most countries in the world, including the United States, what is termed “sport SCUBA equipment” is not allowed in a commercial diving setting. A full face mask, as opposed to a half mask, is required. This allows for communicators and regulators to be inside the mask. … Another technology is diver tracking which can monitor multiple diver locations.

I think how much easier it would have been if they knew exactly where Connor was instead of relying on searching for his regulator bubbles. … I know there seems to be an attitude that it is shallow water and there are many islands around to swim to if needed. Connor’s scenario, unfortunately, says this ideology is flawed. When it comes to the water, things can go wrong very quickly. This brings me to my most heartfelt question, why not embrace technology as your friend? It is important to me and my family's healing that Connor's loss of life matters and that he is remembered for bringing about safety changes.

Ted Brown's Victim Impact Statement [ 81 ] Ted has also experienced a keen sense of loss since Connor's passing. Like Jane, he has struggled with the reality not only of Connor no longer being with us but the apparent lack of interest from the BC Coroners Service, government and the red sea urchin industry to bring commercial SCUBA diving in British Columbia into the 21st Century. Some excerpts from Ted's reading of his Victim Impact Statement give insight and provide context to the Court:

Before commencing, I would like to say thank you to the empathetic people at WorkSafeBC, the RCMP, especially Sergeant Stoughton, and the Crown for their efforts to seek the truth. It may seem odd, but I would also like to thank Mr. Blackburn, who, through his lawyer, asked to speak with us after pleading guilty. Mr. Blackburn gave, in my opinion, a heartfelt apology for his actions and inactions that led to the death of our son Connor. It was the early morning of October 18. I had been invited to attend the opening game of the Raptors. They won. Our new acquisition, Kawhi Leonard, looked amazing!

I finally made it home, expecting Jane to be sound asleep in bed. Imagine my surprise when I find her awake with her best friend and Connor's Godmother, Janice, sitting in the kitchen. I felt the dread that comes from knowing your friend's marriage is suddenly about to break down. Then the truth. The devastating news that would forever change our family. What? How? Mind-numbing shock and grief. Seemingly endless. … To say the news that Connor’s death was devastating would be an understatement. I was not equipped to deal with the overwhelming level of shock, despair and grief.

Connor's two brothers, his mother, and I all attended counselling. It helped me somewhat. Since I still have daily spells, I can’t say it worked totally. I’m somewhat fortunate to be self-employed. I have no idea how other parents that work for someone could possibly return after a week. It was at least two weeks before Jane, and I found the courage to leave the house to go grocery shopping. It was at least another week before we got out again. It was well over a month before I could set foot back in at work.

In hindsight, I’m sure it was the fear of breaking down in front of people, as I knew I would, answering the inevitable question, “How did it happen?” Needless to say, our business suffered. I know I’m not the same person I was when Connor was alive. Some of the joy of living has been ripped from me. Being in a people-oriented business, I know my customers aren’t coming to be around a sad sack. I try. My other two boys try. Jane tries. We’re all in the businesses together, and we’re all in the same boat grieving. None of us openly admit it. We see it. We know it. It’s mainly left unsaid with hugs.

Connor's death impacted so many people. His friends and relatives were devastated by the news. His godparents and childhood friends still have the sadness in their eyes. His girlfriend, Kris, still calls us from B.C., and I pray for her to heal. I feel her sadness on every call. … Much contributed to Connor’s death. Much of it in the lacklustre way diving is performed in Canada and especially, as I discovered in this industry, in B.C. ... Truly a third-world experience. ...

It turns out that Canada is the only developed country in the world that permits recreational SCUBA equipment to be utilized in a commercial dive application. If Canada was up to the standards of the other developed nations, full face masks would be mandatory. This equipment allows the diver to breathe even if unconscious. Compromised airways including the loss of a mouthpiece, such as in Connor’s case, accounts for 91 percent of all SCUBA fatalities. A full mask also allows for two-way voice communication. Diver tracking is another fundamental item that needs to be included.

If these three items were in place on October 16, 2018, Connor would not have lost his regulator; he would have been able to communicate that he was in need of assistance and would have been easily located quickly. In short, Connor would still be alive. The cost to provide communications and tracking is as low as $1,500.00. That’s a depreciating capital cost as well. I'm betting everyone now wishes a couple of thousand dollars of prevention had been spent. … I can’t understand why the CSA wouldn’t want to bring Canada’s standards up to the highest level.

I also can’t bear to think of hearing or reading the news of another young person dying because of inaction to the safety standards within this industry. Since 1991, 66 percent of B.C. province’s diving fatalities have come from the seafood harvesting industry. Jane and I are asking for a coroner’s inquest into the death of Connor. Perhaps then someone will be able to answer, “How did it happen?” More importantly, perhaps, no one will ever have to ask that question again. “…may came home with a smooth round stone as small as a world and as large as alone.

For whatever we lose(like a you or a me) it's always ourselves we find in the sea” (Excerpt from E.E. Cummings' poem, maggie and milly and molly and may ). [ 82 ] As set out by Judge Joyal, as he then was, in the first sentence of paragraph 45 in R. v. Clearwater Electric Ltd. , [2001] M.J.

No. 101 : [45] In the face of such a moving and honorable contribution to this process, I as a sentencing judge doing what I must always do, must nonetheless be careful to not permit my sentence today, to become unfit or disproportionate because of an over emphasis on what is obviously the unspeakable pain felt by the family and surviving victims… V. THE DEFENDANT ERIC JOSEPH BLACKBURN [ 83 ] The Pre-Sentence Report prepared by Mr. Nguyen and the submissions of defence counsel has enlightened the Court about the

realities of Mr. Blackburn's life. [ 84 ] He was born in Nanaimo, British Columbia. One of three children, as a pre-schooler, Mr. Blackburn lived on a farm outside Nanaimo that his grandfather owned. At the age of six, his family moved to Nanaimo. His parents separated when he was eight. After his parents' separation, Mr. Blackburn lived with his mother. His older brother, having blamed their mother for the family issues, moved in with their father. Mr. Blackburn lived with his mother for about a year before yearning to be with his brother and father. His mother agreed that Mr.

Blackburn would benefit from having his father involved more in his life, and he moved without issue. [ 85 ] His father was an alcoholic who drank frequently but was not neglectful or abusive. Mr. Blackburn was sometimes required to drive his father home from the bar or social events even before he was fully licensed to operate a motor vehicle. Mr. Blackburn describes his father as a kind and hard-working man who made his living as a professional entrepreneur. His father held investments in real estate in British Columbia and the USA.

He built and sold various companies, from taxi dispatch to marine lumber reclamation. Mr. Blackburn attributes his work ethic to his father, who always encouraged and pushed him to be successful and productive. His father's devotion to work negatively affected his relationships, and Mr. Blackburn believes he also inherited this flaw. He believes his parents' failed marriage resulted from his father's drinking and absences from home due to work. [ 86 ] Mr. Blackburn remained engaged with academics and was heavily involved with hockey during his youth. He graduated high school and achieved his grade 12 diploma.

His goal had been to play hockey professionally, but his dreams ended when, at age 19, he suffered a catastrophic knee injury during a hockey game. Afterwards, Mr. Blackburn fell into his second passion, automotive mechanics. He obtained an automotive apprenticeship at Dennis Paugh Motors and completed his four- year Red Seal certification in automotive mechanics. Mr. Blackburn also engaged in the commercial fishing industry in the following years, harvesting various products. [ 87 ] Mr. Blackburn met his first and only wife in Port Hardy when he was eighteen. They had a son together, now age 35.

His relationship with his wife lasted about 10 years. Mr. Blackburn cites his frequent absences from home due to work and his alcoholism as significant issues in the relationship. Mr. Blackburn remained involved in his son’s life and had parenting time every second weekend. His time with his son involved camping, fishing, and taking him to a mechanics shop to show him trade skills. [ 88 ] In 1983, Mr. Blackburn and his brother bought a gillnetter vessel for commercial fishing. Mr. Blackburn went between automotive work and fishing, but within three y ears, their boat was caught in a storm and sank.

Afterwards, Mr. Blackburn continued alternating seasonally between automotive and fishing work. He also moonlighted extra mechanic work by renting a shop with his brother, a welder by trade. [ 89 ] At 27, Mr. Blackburn and his brother bought their own automotive mechanics and welding shop. Their business lasted about two years before the divorce with his wife forced him to sell off his interest in the company. Mr. Blackburn credits the sale as a significant reason why he has not spoken to his brother for several decades. [ 90 ] At age 29, Mr.

B lackburn relocated to Prince Rupert, and he has remained in Prince Rupert since then, working primarily as a mechanic or fisherman. As a result of his relocating to Prince Rupert, his contact with his son lessened and became sporadic. They have, however, maintained contact over the years through phone calls and texting. [ 91 ] In 1992, Mr. Blackburn began an 8 year relationship with the mother of his second child, his daughter. Mr. Blackburn also has two stepdaughters from the relationship. Drug and alcohol use was frequent during the relationship by both Mr. Blackburn and his partner.

The Ministry of Children and Family Services became involved and apprehended all three girls. The girls ended up in the foster care system. Initially, Mr. Blackburn thought about applying for custody of the three girls but realized his lifestyle was inappropriate for raising children. Mr. Blackburn believes he made the right choice and that his daughter is living a good life, but they have drifted further apart over the years. [ 92 ] Mr. Blackburn's subsequent relationship has been with a woman he has been with on-and-off for the last 17 years.

He considers her a positive influence in his life, though her children disapprove of him. Mr. Blackburn is unsure of the reason for her children's dislike of him. According to defence counsel, the relationship is currently “off”. [ 93 ] Over the years, Mr. Blackburn has continued alternating between fishing and automotive work but has primarily gravitated towards fishing as it can be much more lucrative in relation to the amount of effort put in. He describes himself as a workaholic.

However, since he makes a percentage of what the vessel makes, there are days when he works for free if the harvest is bad. [ 94 ] Mr. Blackburn currently owes about $100,000, between back taxes a nd credit cards. Now unemployed, he is hopeful of returning as a supervisor in the commercial diving industry once his health improves and the Court case is behind him. [ 95 ] Mr. Blackburn has not been diagnosed with any mental disorder or disability. However, since Connor's death, Mr. Blackburn believes he has had post-traumatic stress disorder (PTSD). Connor's death weighs heavily on his mind, and Mr.

Blackburn can still recall the time spent giving Connor CPR until the Coast Guard arrived. He thinks about the incident daily and reports that it affects all aspects of his life, from his finances to his relationships. [ 96 ] Mr. Blackburn's friends and family have told him that his personality has changed from jovial to more serious. He had no vitality and appeared haunted, often staring off for long periods. Mr. Blackburn was emotionally traumatized but refused to engage with anyone and refused to speak of what happened. Mr. Blackburn's son explained to Mr.

Nguyen that shortly after Connor's death, his father returned to Nanaimo for a time and was “really messed up”. [ 97 ] Over the years, Mr. Blackburn has slowly rebounded and has been able to talk about October 16, 2018. While Mr. Blackburn's efforts in burying and ignoring his emotional turbulence have not worked, he is now more receptive to getting help. He has reached out to WorkSafeBC to get funding for PTSD therapy and told Mr. Nguyen that he intends to continue seeking PTSD therapy after the court case has concluded.

[98] Mr. Blackburn's alcohol use was consistent as a youth; before he was 17, he had accrued three impaired driving infractions. Mr.Blackburn states that his alcohol use was “heavy drinking” for a large portion of his adulthood, where he could consume upto a case of beer and a 26-ounce bottle of spirits in an evening. Mr. Blackburn told Mr. Nguyen that he had “a lot of fun” during thoseyears and has no regrets. [99] Mr. Blackburn maintained heavy alcohol use up until about the age of 45, when he slowed down. In his younger days, he hadbuilt up a reputation with the RCMP for being aggressive. While Mr.

Blackburn acknowledges that many of his life troubles have beencaused by alcohol use, he has never engaged in counselling or treatment. During his twenties, his father took him to AlcoholicsAnonymous to help him and his marriage, but it was not helpful for Mr. Blackburn. Currently, Mr. Blackburn consumes about one tothree beers a day. He does not feel his alcohol use is an issue. [100] Mr. Blackburn has experimented with acid, mushrooms, powder cocaine, and crack cocaine.

Because his on-and-off partnerdisapproves of illegal drugs, over the past 17 years, he has had to sneak his drug use, reducing his frequency of use. The only illicit drughe uses regularly is crack cocaine, which was at its peak during his relationship with his daughter's mother. However, since Connor'sdeath, Mr. Blackburn reports that his crack-cocaine use has worsened considerably. He believes he has been self-medicating with druguse. [101] Mr. Blackburn has a criminal record with a single entry from 2005 for Wilful Resist/Obstruct Peace Officer. During his three-month Suspended Sentence, Mr.

Blackburn was referred to anger management but refused to comply. He told his probation officer thathe had done similar programs in the past and did not find them helpful and was too busy with work. Mr. Blackburn also failed tocomplete his 20 hours of community work service, but BC Corrections decided it was not in the public interest to breach him on eitherissue. His probation officer noted that Mr. Blackburn's reporting was consistent. To Mr. Nguyen's knowledge, Mr. Blackburn neverfollowed through with alcohol and drug counselling. [102] Mr.

Blackburn thinks about Connor daily, and Connor's death still profoundly affects him. He described Connor to Mr. Nguyenas a “good kid” who worked hard to gain Mr. Blackburn's approval, which was why he greatly liked Connor. Mr. Blackburn takes hisfailure everywhere with him and blames himself for not being trained in 2018 as a diving supervisor. He acknowledges that he relied tooheavily on his experience working in various fisheries and the success he enjoyed on his first red sea urchin harvesting trip.

It was highlysuccessful, bolstering his confidence as a fisherman and deterring any efforts to become more educated. [103] Since Connor's death, being on the water and supervising divers has caused much anxiety for Mr. Blackburn. Furthermore, hecontinues to play the events in his mind regularly and suffers nightly nightmares. Mr. Blackburn wonders if, despite the autopsy result,an embolism caused Connor's death. He finds sleep to be hard to come by. He has not slept well since the fatality. [104] Despite living on a moored boat named Chilko Lake, Mr.

Blackburn has reached the point where he does not trust himself toleave the pier on a vessel. Chilko Lake was built in 1951. He found the Chilko Lake sinking five years ago. He pulled her up and endedup paying the owner $10,000 for the vessel, although it is worth far less today. It's not seaworthy, but he lives on it at the Fairview Dockin Prince Rupert, where he owes over a thousand dollars in moorage fees. Although moorage fees cover his electricity, he still has to buydiesel for the pumps to keep the vessel above water. [105] Mr. Blackburn is now not employed at all.

He is collecting $339 monthly from his Canada Pension Plan retirement pension. Hisphysical health challenges include arthritis, hypertension, muscle and connective tissue wasting, especially in the left hand, and chronicalcoholism, which, for the most part, he seems to have under control. The wasting in his left hand and wrist stops him from being able togrip objects in his left hand. He has been trying to get medical assistance, a universal challenge for all residents of Prince Rupert andsurrounding communities. The current combination of his physical and mental health challenges means that Mr.

Blackburn cannot workon a sea vessel. [106] While Mr. Blackburn fully accepts his responsibility and

part in Connor's death, he remains critical of some diving regulations,telling Mr. Nguyen that the OHS Regulation does not effectively reflect the reality of diving work. He believes better technology shouldbe implemented and made mandatory on diving vessels. VI. DISCUSSION [107] In British Columbia, Crown Counsel is responsible for approving charges. The BC Prosecution Service has policy in place toguide prosecutors with their charge approval function. In cases such as the present, Courts are not told why the BC Prosecution Servicedecided to pursue regulatory charges instead of criminal ones.

Offences contrary to the Act and the OHS Regulation are a subset ofregulatory offences known as public welfare offences. Mr. Blackburn has pled guilty to two public welfare offences. In R. v. KaliaResources, 2022 BCPC 304, Judge Reeves set out the basic framework for distinguishing regulatory and criminal offences. He stated: [9] Criminal offences are distinguished from regulatory offences and the objective reason for this was set out in R. v. Wholesale TravelGroup Inc., (SCC).

Justice La Forest held that conduct prosecuted as a crime is “so abhorrent to the basic values ofhuman society that [they] ought to be prohibited completely.” In contrast, regulatory offences are based upon prohibited conduct relatedto dangerous conditions that society, particularly the vulnerable, would be exposed to if left unregulated.

Regulatory legislation takes abroader consideration of the protection of the public and societal interests, in contrast to criminal law that focuses on individual intereststhat are placed in jeopardy through the moral fault of criminal conduct and which requires deterrence and punishment. “While criminaloffences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed tothe prevention of future harm through the enforcement of minimum standards of conduct and care.” As a result, regulatory offencesembody different concepts of fault than crimes.

Regulatory offences are directed towards the consequences of action and import a lesserdegree of culpability, in contrast to true crime convictions. The required degree of fault in regulatory offences is based on a standard ofreasonable care and not the moral blameworthiness found in criminal offences and thus, regulatory conviction carries with it only thestigma of having failed to meet a prescribed standard of care… [108] Unlike the Criminal Code, which encompasses an entire regime concerning sentencing in

Part XXIII, including a statement of thepurposes and principles for sentencing, neither the Offence Act, RSBC 1996, c 338, nor the Act set out what constitutes the sentencing

purposes and principles for offences committed contrary to it. Instead, s. 107 of the Act (s. 14 in the current version of the Act) sets outthe public welfare purposes of the Act:

Part 3 — Occupational Health and Safety Purposes of

Part 107

(1) The purpose of this

Part is to benefit all citizens of British Columbia by promoting occupational health and safety andprotecting workers and other persons present at workplaces from work related risks to their health and safety.

(2) Without limiting subsection (1), the specific purposes of this Part are (

a) to promote a culture of commitment on the part of employers and workers to a high standard of occupational health and safety, (

b) to prevent work related accidents, injuries and illnesses, (

c) to encourage the education of employers, workers and others regarding occupational health and safety, (

d) to ensure an occupational environment that provides for the health and safety of workers and others, (

e) to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share thatresponsibility to the extent of each party's authority and ability to do so, (

f) to foster cooperative and consultative relationships between employers, workers and others regarding occupational health and safety,and to promote worker participation in occupational health and safety programs and occupational health and safety processes, and (

g) to minimize the social and economic costs of work related accidents, injuries and illnesses, in order to enhance the quality of life forBritish Columbians and the competitiveness of British Columbia in the Canadian and world economies. [109] Rick Libman, on page 3 in his dissertation titled Regulatory Offences And Principles Of Sentencing: Is The "Patchwork Quilt" InNeed Of Reshaping And Reform? (Doctoral Dissertation, Faculty of Graduate Studies at York University, May 2011), succinctlysummed up the problem: Regulatory offences correspond to an incredibly diverse and complex series of activities.

Indeed, one of the challenges for courts whenimposing a penalty for the commission of a regulatory offence is the breadth of the type of activity and conduct that may comprise theinfraction.

Whereas the Criminal Code of Canada includes a statement of sentencing purposes and principles to guide courts indetermining punishment, there is no such guidance provided to courts sentencing those who commit regulatory offences. [110] What we are left with, then, is reviewing appellant sentencing cases and previous decisions of this and other Provincial Courts inan attempt to ascertain the purposes and principles for sentencing in the public welfare offence framework. [111] To assist the Court in the present case, the BC Prosecution Service has provided the Court with several case authorities, which Ihave reviewed: Ontario (Ministry of Labour) v.

Vixman Construction Ltd., 2020 ONCJ 64 Ontario (Ministry of Labour) v. New Mex Canada Inc., 2019 ONCA 30 R. v. A-1 Mushroom Substratum Ltd., 2011 BCPC 458 R. v. Canadian MDF Products Co., 2002 ABPC 82 R. v. Canadian National Railway Company, 2017 BCPC 448 R. v. Clearwater Electric Ltd. [2001] M.J. No. 101 R. v. Cotton Felts Ltd., R. v. Delgant, 2005 ONCJ 552 R. v. Fiesta Party Rentals,

(1984) Ltd., 2000 ABPC 218 R. v. Steinman and 678531 B.C. Ltd., Provincial Court of British Columbia, Prince Rupert Registry No. 30459-1, October 21, 2022,D.M.D. Stewart, PCJ R. v. Scott Steel Ltd. and Scott, 2006 BCPC 207 R. v. Shercom Industries Inc., 2018 SKPC 3 R. v. T & L Den Brok Enterprises Inc., 2014 SKPC 97 R. v. Westfair Foods Ltd., 2005 SKPC 26 [112] Mr. Blackburn has relied upon the Act and the Offence Act. Sentencing Options

[ 113 ]

Section 217 of the Act sets out the available sentencing options for a defendant convicted of offences contrary to the Act or the OHS Regulation. The available sentence for an offender on a first conviction is a maximum fine of $738,000, six months in jail, or both.

Section 220 of the Act requires that all fine payments be transferred for deposit to the accident fund. [ 114 ] When imposing a fine, s. 88 of the Offence Act requires the sentencing judge to consider the means and ability of the defendant to pay. Where the justice concludes the defendant is unable to pay the fine that the Court would otherwise impose, the sentencing judge may use their discretion and impose a lesser penalty. [ 115 ]

Section 219 of the Act permits a justice to also impose additional conditions, akin to probation, for a period of up to 3 years. According to s. 89 of the Offence Act , a probation order for up to two years is also an available sentencing option. Public Welfare Offences [ 116 ] Unlike criminal offences, existing case law teaches that sentencing in public welfare cases addresses harm in consideration of or in preparation for the future . No sentence imposed, financial or otherwise, can restore the tragic loss arising from the violation and is not intended to do so.

What can be achieved and should be achieved by any sentence imposed is the deterrence of potential future offenders.

Sentences should demonstrate to others that failing to comply with legislative provisions to protect worker safety will result in severe consequences. [ 117 ] The predominant sentencing principle in cases involving public welfare offences is general deterrence, as succinctly stated by Judge Lamoureux in paragraph 10 in Fiesta Party Rentals : [10] To state it another way, public welfare statutes adopt deterrence as a primary sentencing goal in order to adequately reflect community disapproval of conduct which imperils the safety of members of the public, and most particularly the worker in the workplace. [ 118 ] In emphasizing the point, Justice Paciocco confirmed in the last sentence of paragraph 78 in New Mex Canada Inc. : …Even in the case of first offenders, this sentencing priority should not be undercut by over​emphasizing rehabilitation or specific deterrence. [ 119 ] In tragic cases such as Connor's, employers, supervisors, and society cannot view the death of an employee as an acceptable cost of doing business.

The safety of employees, not profits, must always be the overriding concern for everyone, including employers and supervisors. [ 120 ] Safety should never be left to the discretion of an employee. It is the responsibility of the employer and supervisors to know the safety legislation and rules relevant to their industry. They must ensure that their workers are trained to do their job safely. Furthermore, the size of a business or the nature of the industry engaged in does not excuse the employer or supervisors' lack of knowledge or understanding of their obligations under the relevant legislation.

I concur with the remarks in paragraphs 24 and 25 in Clearwater Electric Ltd. : 24 …While quite obviously a court cannot expect a sophisticated knowledge and subtle understanding of every provision in every related Act and regulation, it is, in my view, absolutely reasonable to expect of a company, a familiarity with and a pro-active implementation of those duties, procedures and safeguards that govern the particular risks associated with a particular trade. 25 I do not direct these comments to Clearwater Electric, but I must say that a company that cannot understand or has not adequately apprised itself of the practical and particular duties and safeguards that attach to its industry's activities and practices is a company that, quite simply, has no business being in business. [ 121 ] In the present case, Mr.

Blackburn, as supervisor, 678531 BC Ltd., as owner and employer, and Mr. Steinmann, as the employer, failed to take steps to educate or properly train themselves or their employees concerning the relevant legislation and the SCUBA practises required for a safe workplace. There was no education, no training, and no attention to safety in the workplace as a priority. It was a disaster waiting to happen and Connor paid the ultimate price for their failures.

Moral Blameworthiness [ 122 ] In public welfare offences, there is a shift in emphasis from punishing acts involving moral fault to protecting public and societal interests. The focus in these cases is on preventing future harm by enforcing a minimum standard of conduct. The aim of any prosecution for these offences is forward-looking. It is to induce compliance with rules to benefit society as a whole. [ 123 ] Moral blameworthiness in criminal offences tends to be greater than in regulatory offences.

While of limited application, an assessment of an offender's moral blameworthiness in committing a public welfare offence nonetheless remains relevant and is implicit in applying the principle of proportionality. This distinction is appropriately reflected in the sentence imposed. [ 124 ] In considering the overall relevance of moral blameworthiness in regulatory sentencing, New Mex Canada Inc. clarified: 73 To be clear, the relevance of moral blameworthiness in regulatory sentencing does not mean that sentences should be reduced where higher levels of moral blameworthiness are not present.

After all, by design, most regulatory offences can be committed by mere negligence, and some are absolute liability offences imposing punishment even in the absence of moral blameworthiness.

The point is that where the moral blameworthiness of a particular offender increases, so too can the penalty imposed. [ 125 ] Supervisors in the red sea urchin harvesting fishery must understand that they, independent of any obligation imposed on their employer, must be aware of their obligations under the Act to ensure the health and safety of all workers under their direct supervision and to be knowledgeable about the worker safety legislation and regulations applicable to the work being supervised. Why? Because

supervisors play an essential role in ensuring the safety of employees who work directly under them. This case demonstrates that ignorance of these responsibilities can have dire consequences. [ 126 ] Considering the factual findings I have made in the present case, Mr. Blackburn's moral blameworthiness is on the higher end of the spectrum. He voluntarily took employment in an industry he knew nothing about and was not qualified to work in. Once in the industry, he did not take steps to educate or properly train himself or the employees he supervised. He did not read or consider the relevant legislation.

He knew nothing of the SCUBA practises required for a safe workplace. Profit was the primary goal of his work in the red sea urchin fishery. [ 127 ] The only reason Mr. Blackburn’s moral blameworthiness is not at the top of the spectrum are: (

i) He did not receive the support or training he needed from 678531 BC Ltd. and Mr. Steinmann, and (ii) he honestly but mistakenly believed in the lawfulness of his actions while supervising Connor and Mr. McGee. Deterrence [ 128 ] I accept that Mr. Blackburn has taken responsibility for his role in Connor’s death and is remorseful. When given his opportunity to address the Court, he stated: Your Honour, I look back at this every day, this event. And I listened to the parents today. It's just unfathomable that, you know, that I didn't go back and see Connor.

You know, he always said, "Blackie," you know, like a little calm, cool voice, right. I just kept driving away, and when I went back and he's gone. I went back and got him, you know. I couldn't find him. I'm so sorry. I'm so sorry to the parents — those great people. I've talked with them, and they're like my mom and dad, my mom and dad, you know. They're awesome. And I can't say that I'll be [indiscernible], but, you know, Connor came and saw me the day before, or about three days before, and he said, "So what is it there, Blackie?

Do I make the team or what?" To me, the other diver, who was older, right, and he goes like this. And he says, "Can I phone my dad?" and I said, "Yeah, you can phone my dad -- you can phone your dad and tell him," you know, he's finally found his niche, right. He was so happy. We were all so happy. Turned out so sad. It's terrible. [ 129 ] Through his apology to the Brown family and from the information gleaned by the Court through the Pre-Sentence Report , his words to the Court, and counsels’ submissions, it is clear this tragic event has profoundly impacted Mr. Blackburn.

I accept what the prosecutor and defence counsel have urged upon me: specific deterrence has been achieved in this case. [ 130 ] Judge Steinberg’s writings in Scott Steel Ltd. and Scott mirror my opinion: [11] This theme is dealt with some years later in the Supreme Court of Canada in the case of R. v. M.(C.A.) , and I am quoting from the excerpt contained in His Honour Judge Jardine's sentence with respect to C.A.M. in this matter.

At page 369, paragraph 81 of the C.A.M . case, the Supreme Court of Canada wrote: The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [12] Now, that was a criminal case, but I think it obvious that the sentiments expressed in that case apply with at least equal force, if not more so when dealing with public welfare statutes such as the Workers' Compensation Act and its Regulations . [13] The goal in this particular case is not one of specific deterrence.

The goal here is one of denunciation and general deterrence. No person, unless they were completely heartless, could walk away from an event such as the events of October 27th, 1997 where John Marti

[…]