R. v. Kern, 2022 BCPC 273

Citation: R. v. Kern 2022 BCPC 273 Date: 20221031 File No: 30555-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ADRIAN SLAVKO KERN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: C. Coulson appearing by videoconference Counsel for the Defendant: R. Anderson appearing by videoconference Place of Hearing: Prince Rupert , B.C. Date of Hearing: October 31, 2022 Date of Judgment: October 31, 2022 [ 1 ] THE COURT: These are my reasons for sentence. Adrian Slavko Kern has pled guilty to Count Number 1 of Prince Rupert

[ 1 ] THE COURT: These are my reasons for sentence. Adrian Slavko Kern has pled guilty to Count Number 1 of Prince Rupert Court Information 30555-1, to wit, between the 13th day of September and the 19th day of September, 2018, in Chatham Sound, near the City of Prince Rupert, in the Province of British Columbia, while fishing, did set fishing gear in a closed area contrary to s. 25(1) of the Fisheries Act and did thereby commit an offence contrary to s. 78(

a) of the Fisheries Act . Sentencing Position of the Parties [ 2 ] I have been presented with a partial "joint submission," as that term is understood in the leading case of R. v. Anthony-Cook , 2016 SCC 43 . The prosecution and Mr. Kern have agreed that he should pay a $25,000 fine and, pursuant to s. 79 of the Fisheries Act , an additional fine of $24,704.68. That is a total in fines of $49,704.68. [ 3 ] The parties differ on whether or not Mr. Kern should receive a fishing prohibition. The Public Prosecution Service of Canada is seeking a one-year prohibition. At the same time, Mr.

Kern says that given his present circumstances, including the size of the fines in this case, specific and general deterrence is met, and thus he does not require a fishing prohibition. The Relevant Regulatory Framework [ 4 ] The Fisheries Act is federal legislation in Canada.

Section 2.1 of the Act states its purpose is to provide a framework for the proper management and control of fisheries and the conservation and protection of fish and fish habitat, including by preventing pollution. Section 25(1) of the Act , which forms the basis for Count 1 to which Mr. Kern has pled guilty, states as follows: Subject to the regulations, no person shall place or set any fishing gear or apparatus in any water, along any beach or within any fishery during a close time. [ 5 ]

Section 78(

a) of the Act makes it an offence to contravene any provision of the Act or its Regulations and provides for a maximum penalty of a fine of $100,000 for a first offence prosecuted summarily or for a maximum penalty of a fine of $100,000 and a maximum jail term of one year for a subsequent offence prosecuted summarily. I should point out that Crown has proceeded summarily in this case. Mr. Kern [ 6 ] Mr. Kern has three prior related convictions under the Fisheries Act outlined as follows: 1. Prince Rupert 2003, Mr.

Kern was convicted of three counts of commercial licence condition breaches and one count of operating a vessel without a proper registration number pursuant to the Fishery (General) Regulations . A fine of $500 per count was imposed for total fines of $2,000 in addition to a one-year probation order. The offences occurred in 2001. 2. Ucluelet 2007, Mr. Kern was convicted of one count of catching/retaining fish during a closed time pursuant to the Pacific Fishery Regulations . The offence occurred in 2005. A fine of $2,500 was imposed in addition to an amount of $10,000 imposed pursuant to s. 79.2(

f) of the Fisheries Act for total fines of $12,500. 3. Prince Rupert 2020, Mr. Kern was convicted on Count 1 of fishing in a closed area. The offence occurred in 2018. A fine of $5,000 was imposed in addition to an amount of $10,000 imposed pursuant to s. 79.2(

f) of the Fisheries Act for a total fine of $15,000 pursuant to a joint submission by counsel. I should note that I was the sentencing judge on that occasion. The Offence The Commercial Sablefish and Halibut Fishery [ 7 ] On February 21, 2018, the commercial sablefish fishery opened for that year. On March 24, 2018, the commercial halibut fishery opened for that year. It is mandatory for commercial fishing vessels participating in the sablefish and halibut fishery to use an electronic monitoring, "EM," system aboard. The EM device captures details about all fishing events for a trip.

The EM system produces timestamped sensor data during a fishing trip and records the details such as date, time, GPS location, vessel speeds, and headings. A third-party company reviews EM data and inputs it directly into the Fishery Operation System, which is available for review by Fishery Officers. The third-party company also reports potential violations to the Department of Fisheries and Oceans ("DFO"). [ 8 ] On October 10, 2018, DFO received a violation report detailing five events where Mr.

Kern had set and hauled fishing gear inside the sablefish closed area between September 14 and 18, 2018. [ 9 ] On August 16, 2018, Mr. Kern hailed out for the sablefish and halibut fisheries as vessel master on the commercial fishing vessel called Mandela Number One [phonetic]. The mandatory EM system hard drive was installed in Mandela Number One before the vessel hailed out for this trip. During this time, Mandela Number One operated under the following commercial fishing licences: 1. Sablefish Licence K-46/2018; and 2. Halibut Licence L-352/2018. [ 10 ] Section 7(3)(

b) of the conditions of licence for Halibut Licence L-352/2018 allows fishers to fish for both sablefish and halibut simultaneously. Section 2(2) of the conditions of licence for Sablefish Licence K-46/2018 outlines the Pacific Fishery Management Areas in which sablefish fishing is permitted: 1.

Areas 1, 2, 101, 108 to 111, 121, 123 to 127, 130, 142, Subarea 102-3, and that portion of Subarea 102-2 that lies south of the line from 52 degrees to 10 minutes north latitude and 130 degrees, 57.395 minutes west longitude to 52 degrees, 27.020 minutes north latitude and 130 degrees, 16.621 minutes west latitude [sic, longitude]. Subject to variation of the close times set out in the Pacific Fishery Regulations 1993.

[11] Section 2(2) of the conditions of licence for Halibut Licence L-352/2018 outlines the Pacific Fishery Management Areas inwhich halibut fishing is permitted when the vessel is hailed out on both the sablefish fishery and the halibut fishery: 1. Areas 1, 2, 101, 108 to 111, 121, 123 to 127, 130, 142, Subarea 102-3, and that portion of Subarea 102-2 that lies south of the linefrom 52 degrees to 10.00 minutes north latitude and 130 degrees, 57.395 minutes west longitude to 52 degrees, 27.020 minutes northlatitude and 130 degrees, 16.621 minutes west longitude.

Subject to variation of the close times set out in the Pacific Fishery Regulations1993. [12] From August 18, 2018, to September 18, 2018, Mr. Kern fished a total of 47 sets, five of which were within Pacific FisheryManagement Areas 3-1 and 3-3, which are areas north of Dundas Island in Chatham Sound and both of which are closed to sablefishfishing and vessels hailed out to both sablefish and halibut. The details of these five sets are as follows: (

a) on September 14, 2018, at 5:48 hours, set number 43 began, and longline fishing gear was set and later removed within Areas 3-1and 3-3; (

b) on September 14, 2018, at 6:58 hours, set number 44 begins, and longline fishing gear is set and later removed within Areas 3-1and 3-3. (

c) on September 16, 2018, at 12:33 hours, set 43 began, and longline fishing gear was set and later removed within Areas 3-1 and 3-3; (

d) on September 17, 2018, at 8:29 hours, set number 46 began, and longline fishing gear was set and later removed within Areas 3-1and 3-3; and (

e) on September 18, 2018, at 10:20 hours, set number 47 began, and longline fishing was set and later removed within Areas 3-1 and3-3. [13] A map generated by DFO showing the locations of the five sets that occurred in closed areas makes it clear that this area is well-identified and was closed. [14] On September 18, 2018, at 19:17 hours, Mr. Kern hailed back in and completed his fishing trip. As required, during this fishingtrip, Mr. Kern recorded all set data and catch data in the logbook issued to him by DFO.

The catch reports were as follows: set 43, 28halibut retained; set 44, 13 halibut retained; set 45, 60 halibut retained; set 46, 38 halibut retained; set 47, 15 halibut retained, for a totalof 154 halibut. Concerning the sablefish: set 43, 114; set 44, 68; set 45, 57; set 46, 104; set 47, 124, for a total of 467 sablefish. [15] Based on the offload documents for the fishing trip, approximately 4,004 pounds of halibut were harvested from the 154 halibutcaught in sets 43 through 47 within the closed areas. I was not provided information regarding the sablefish.

In 2018, commercial halibutcaught by longline was sold for a yearly average of $6.17 per pound. It is, therefore, estimated that Mr. Kern made approximately$24,704.68 off the halibut caught in the closed area from fishing sets 43 to 47. Again, I was not given information about the sablefishcaught from those same sets. [16] On September 20, 2018, Mr. Kern offloaded his catch in Port Edward. These offloads were recorded on Fish Slip 016078(halibut) and Fish Slip 016039 (sablefish), which the vessel's skipper must sign. Mr.

Kern did not sign either of these fish slips. [17] Critical priorities for fishery management in Canada include environmental sustainability, economic viability, and the inclusionof stakeholders in decision-making processes. The Pacific commercial groundfish fisheries, including the Pacific halibut and sablefishfisheries, use a suite of management tools to protect fish stocks and halibut. Spatial closures are an essential management tool to protectspecies from overfishing and halibut from fishing gear's impacts.

Closed areas are also used to manage marine resources to meet socialand economic objectives by opening areas only to -- sorry, by opening areas only to specific users. Fishing in closed areas can haveserious negative consequences for conservation and fishery management efforts and can affect the fishery's environmental sustainabilityand economic viability. Adherence to the rules surrounding commercial fisheries is required to manage the fishery effectively. Caselaw [18] I have reviewed the following cases: R. v. Terroco Industries Limited, 2005 ABCA 141; R. v.

Brown, 2010 BCCA 225; R. v.Schafhauser, 2017 BCSC 2287; R. v. Stoner [phonetic], July 2, 2021, British Columbia Provincial Court File Number 6761-1 and 29972-1, Prince Rupert, unreported; R. v. Nguyen and To, May 18, 2021, British Columbia Provincial Court File Number 16261-1, PowellRiver, unreported; R. v. Le, 2019 BCPC 116; R. v. Butt, (Newfoundland Provincial Court); R. v.

Ma and Hau[phonetic], November 30, 2009, British Columbia Provincial Court File Numbers 165029-2-C and 165030-2-C, Surrey, unreported; R. v.Wolgamott, Hoover, et al [phonetic], February 24, 2021, British Columbia Court Files 41809-1, Gold River, unreported; R. v. Zhu, 2019BCPC 388; R. v. Tang et al, June 20, 2018, British Columbia Court File Number 17427-1, Sechelt, unreported; R. v. Kern, November 27,2007, British Columbia Court File Number 40028-3-C, Ucluelet, unreported; R. v. Kern, August 5, 2020, British Columbia Court File29854-1, Prince Rupert, unreported; and R. v.

Anthony-Cook, already cited. [19] In Brown, a case that involved a harmful alteration, disruption, or destruction of fish habitat contrary to the Fisheries Act, ourCourt of Appeal confirmed that the leading case on the principles of sentencing for environmental offences is Terroco IndustriesLimited. In doing so, the Court of Appeal reinforced that sentencing principles for environmental offences require a special approach withparticular emphasis on the areas of culpability, past involvement with the authorities, acceptance of responsibility, harm, and deterrence. [20] Five years ago in Schafhauser, a

summary conviction appeal case involving a commercial salmon fisher in Haida Gwaii who,like Mr. Kern, was involved with a DFO inspection, albeit in Mr. Kern's case, it came as a result of the mechanisms that had been placedin effect to monitor the fishery, Justice Punnett confirmed that: [11] The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must

be taken seriously. Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused andgenerally of other members of the public who are inclined to act in the same manner. Penalties must be sufficiently severe tocommunicate to the accused that there is a high risk associated with their illegal activities both for the resource they are affecting and tothemselves for their conduct, (see R. v. Cox; [1999] N.J. 264, NFLPC), R. v. Forsey, the latter at [1999] N.J.

No. 264 (N.L.P.C.) atparagraph 20). [12] In this instance, the sentencing judge appropriately highlighted the need for an appropriate sentence to deter similar conduct bythe commercial fishing community generally and specifically by Mr. Schafhauser. I note that many of the authorities refer to the fact thata penalty should be more than simply a cost of doing business. In particular, in this instance, that is significant because this is aregulatory statute designed to preserve a valuable resource.

In sentencing on regulatory offences, our Court of Appeal has accepted thefollowing sentencing principles: culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, anddeterrence (see R. v. Terroco Industries Limited, 2005 ABCA 141 , 2005 196 C.C.C. (3d) 293, a decision of the Alberta Court ofAppeal, pages 304 to 311; and R. v.

Brown, 2010 BCCA 225, at paragraph 13). [21] Upon my review of Terroco Industries Limited, Brown, and Schafhauser, I conclude that the Fisheries Act is designed to protectand preserve a valuable resource, and any contravention of it must be taken seriously. The predominant sentencing considerations foroffences committed contrary to the Fisheries Act are deterrence, specifically of the person being sentenced and generally of othermembers of the public who are inclined to commit the same or similar offences. Culpability [22] I accept Mr. Kern feels horrible about breaking the law.

Nevertheless, as an experienced fisher, he is highly culpable. Past Involvement with the Authorities [23] As pointed out by the prosecutor, Mr. Kern has three previous convictions, the last of which in 2020 was for an offence thatoccurred several months before this offence. On that occasion, I sentenced him to fines totalling $15,000, according to a joint submissionby counsel.

I am informed that he has not paid those fines even though he had been given precise instructions by myself that, if he wasunable to pay the fines by January of 2022, he should make an application before the court to extend the time needed to pay. Acceptance of Responsibility [24] Mr. Kern has personally accepted full responsibility for the offences. Moreover, over the past four years, he has completelycomplied with the law. In fact, somewhat to my surprise, he admitted that he was surprised that he was not being punished more for thesablefish that he took, as well.

Harm [25] The comments of Judge Mrozinski in paragraphs 43 to 46 in McKinnell Fishing Ltd., 2016 BCPC 466, are appropriate andapplicable to the current case. In paragraph 43: [43] Those benefiting directly, both economically and otherwise, from this resource are of course First Nations, who are interested inpreserving their aboriginal right and interest in the crab fishery, recreational fishers and commercial fishers.

Indirectly, of course, allresidents of British Columbia benefit from a sustainable and vibrant fishery. [44] The value of this resource to British Columbians, coupled with the decline in the crab harvest, serves to underscore theimportance of resource management. There may have been a time in the distant past when a mind of a practical bent might havewondered about the futility of the finer points of fisheries laws. In the present day, there is no room for such complacency.

In a world inwhich resource sustainability is strained, not just by demand but by the environment itself, the value of regulatory compliance cannot beoverstated. [45] As the Crown notes in its submissions, the nature of the crab fishery is such that catch is the only indication of abundance.

Thisfact mandates that the crab fishery occur in a highly regulated environment, and it is only when everyone complies with the regulationsand licencing requirements that we can ensure a sustainable fishery for the benefit and enjoyment of all and that includes the defendantherein. [46] Seen in this light, while the defendant's transgressions may, to it, have seemed innocuous, they clearly are not. The failure tocomply with its licence and regulations has the potential to contribute to a failure of this fishery, particularly if all fishers were of thesame view.

It is for this reason, clearly, that virtually all of the case law before me in this sentencing emphasizes the importance of thesentencing objectives of specific and general deterrence in regard to these regulatory offences. [26] The same holds true for the sablefish and halibut fisheries in British Columbia. Deterrence [27] I accept what Mr. Anderson told me on behalf of Mr. Kern, that is, that Mr. Kern has already been specifically deterred by thisentire experience. I accept from Mr.

Kern, as well, that he has explicitly learned from the occurrences in 2018, not only this file but theprevious file on which I sentenced him, and that he has strived over the past four years not to find himself afoul of the law. On the otherhand, general deterrence demands not only a significant financial penalty for Mr. Kern to dissuade other fishers and members of thepublic who are inclined to ignore the Regulations and the laws of the fishery, but also to guide future fishers in making sure that theycomply. [28] In my view, the financial penalty agreed upon by the prosecutor and Mr. Kern is very significant.

Given his current financialsituation, one has to wonder how or if he will be able to pay it. Mr. Kern is currently not working due to an injury. He is couch-surfing,

and Mr. Kern has zero income coming in at the current time. Conclusion [ 29 ] In fashioning a sentence specific to Mr. Kern, I have kept the Supreme Court of Canada's teachings in the forefront of my mind and considered the caselaw provided by counsel. I have considered Mr. Kern's moral blameworthiness, which I find at the high end. I accept that he did not set out to break the law. On the other hand, Mr. Kern did not research and educate himself as to what areas were closed. He did not take the steps required of an experienced fisher, which he was and is. Mr.

Kern did not reach out to the DFO to ensure that he would be in areas open for sablefish and halibut fishing. He did not comply with the Fisheries Act . [ 30 ] The Supreme Court of Canada has instructed that the overarching principle is that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender, the latter of which means the offender's moral blameworthiness.

The principle of parity, which requires a consideration of sentences imposed on similar offences in similar circumstances, informs the proportionality analysis, ensuring that the sentence is both individually proportionate and proportionate with sentences given to other offenders in similar situations. [ 31 ] In light of the position taken by counsel, the fundamental matter for me to decide is whether this case requires a fishing prohibition.

In doing so, I keep in mind what was stated by my brother judge, Merrick, in the Tang decision: [18] In my view, there are additional sentencing principles related to protection of the fishery. The public interest in protecting the fishery is hardly a trifling matter whether that fishery is a commercial fishery or a recreational fishery. [19] We are stewards of our environment. We have an obligation to others in society and to future generations to be diligent in managing the resources that we have inherited.

Social interests override individual entitlement and accountable stewardship is demanded and expected, not merely hoped for from those who choose to fish. [20] We all have to understand that there really are just a limited number of fish in the sea.

We have to understand that our activities impact the species we choose to harvest. [21] As noted in the impact statement, given the large number of recreational fishery participants in B.C., the effect of illegal fishing including exceeding fishing limits by even a small proportion of recreational harvesters to have a significant negative impact on the fishery recourse. What we have seen with respect to the yelloweye rockfish from when this offence was committed in May of 2017 to today's date is what we are no longer able to possess, rockfish. [22] Sentencing ranges shift.

There was a time when low fines were imposed for drinking and driving offences.

In response to community concerns, Parliament stepped in and over the years has imposed and increased the mandatory minimum sentence. [23] The simple proposition is, is that if for people cared enough to follow the fishing regulations there would be more fish in the sea. [24] The failure to follow fishing regulations is serious and, as stewards of our environment, it is incumbent on the court to impose fines that reflect society's condemnation of a serious environmental issue. [ 32 ] To that, I add for repeat offenders, even when it causes significant financial harm, a prohibition from fishing must be imposed.

In this particular case, I agree with the PPSC that a fishing prohibition is called for and is required, given all of the factors set out by our Court of Appeal in Brown . In particular, Mr. Kern has three convictions, which are all relevant, and even though he has maintained the last four years without any issues, for general deterrence's sake, anything but a prohibition would not be proper and would bring the administration of justice into disrepute. So there will be a prohibition. However, the prohibition will be for eight months. [ 33 ] I am making the following order: 1. Pursuant to s. 79.1(

b) of the Fisheries Act , Adrian Slavko Kern is prohibited from applying for a new commercial fishing licence under the Act for a period of eight months. 2. Pursuant to 79.2(

a) of the Fisheries Act , having regard to the nature of the offence and the circumstances surrounding its commission, Adrian Slavko Kern is prohibited from fishing under any commercial licence for a period of 12 months. [ 34 ] Regarding the fines, I am giving Mr. Kern until November 1, 2028, to pay the fines. If he cannot pay the fines in whole before that date, he is entitled to and should bring an application before this court for an extension of the period to pay. This is not about avoiding the payment of the fines, just the opposite. It is about allowing Mr.

Kern the opportunity to get back on the ocean and make the money he needs to make to pay these fines once his prohibition is up. [ 35 ] I am not waiving the requirement that Mr. Kern signs the payment form -- time-to-pay form and I am going to direct that the PPSC prepare an order for signature by Mr. Anderson as to the form of the order in light of the prohibition orders that I have made here today. [ 36 ] Ms. Coulson, anything else from the PPSC's perspective? [ 37 ] CNSL C. COULSON: No, the only thing, Your Honour, is that I did submit a draft order to you.

Do -- would you like me to submit a new one with the -- [ 38 ] THE COURT: Yes. [ 39 ] CNSL C. COULSON: -- with amended time -- [ 40 ] THE COURT: Do you --

[ 41 ] CNSL C. COULSON: -- of the prohibition? [ 42 ] THE COURT: Correct, thank you. [ 43 ] CNSL C. COULSON: And the other thing, Your Honour, is that you mentioned that the 79.1(

b) prohibition which is prohibiting him from applying for a new licence was for a period of eight months, but that the prohibition for fishing under any commercial licence was for 12 months. [ 44 ] THE COURT: Sorry, I apologize. [ 45 ] CNSL C. COULSON: Was that the intention? [ 46 ] THE COURT: I misspoke, it should be eight months, as well. [ 47 ] THE CLERK: Oh, ah -- [ 48 ] CNSL C. COULSON: Thank you, then I have no further comments and I'll just let my friend indicate if he does before I stay the remaining counts. [ 49 ] THE COURT: Thank you. Mr. Anderson? [ 50 ] CNSL R.

ANDERSON: [Indiscernible] arising, Your Honour. [ 51 ] THE COURT: Thank you. [ 52 ] CNSL C. COULSON: At this point, then, the Crown can direct a stay of proceedings on Counts 2 through 5. [ 53 ] THE COURT: Thank you, and Mr. Kern, perhaps I should have put this into my reasons for sentencing, but I am going to say this. The reason I only gave you an eight-month prohibition, not the year the prosecutor was seeking, was to give you the opportunity to get back fishing again.

It will have been five years since your last trouble with the law, and hopefully, you can start earning money to support your family and, of course, support yourself. Good luck moving forward, sir, and I mean that. [ 54 ] THE ACCUSED: Now, when does this -- is it immediately, I guess? [ 55 ] THE COURT: It is immediate as of today. (REASONS FOR SENTENCE CONCLUDED)