R. v. Ireland, 2023 BCPC 138

Citation: R. v. Ireland 2023 BCPC 138 Date: 20230619 File No: 30563-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CURTIS MALCOLM IRELAND CORRIGENDUM TO THE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: Richard J.M. Yalowsky Counsel for the Defendant: Andrea Penner Place of Hearing: Prince Rupert , B.C. Dates of Hearing: September 29, 2022, February 9 and June 19, 2023 Date of Judgment: June 19, 2023 A Corrigendum was released by the Court on June 20, 2023. The correction has been made to the text and the Corrigendum is

appended to this document. I. INTRODUCTION [ 1 ] On September 29, 2022, Curtis Malcolm Ireland entered guilty pleas to two

summary conviction offences before me: Count 1 Curtis Malcolm IRELAND, on or about the 8th day of July, 2020, in Canadian Fisheries Waters, at or near the City of Prince Rupert, in the Province of British Columbia, did disturb a marine mammal, to wit seals, contrary to

Section 7 of the Marine Mammal Regulations , thereby committing an offence contrary to

Section 78(

a) of the Fisheries Act . Count 3 Curtis Malcolm IRELAND, on or about the 12th day of August, 2020, in Canadian Fisheries Waters, at or near the City of Prince Rupert, in the Province of British Columbia, did disturb a marine mammal, to wit seals contrary to

Section 7 of the Marine Mammal Regulations , thereby committing an offence contrary to

Section 78(

a) of the Fisheries Act . [ 2 ] Concerning Count 1, Ireland did not enter the guilty plea as the individual who disturbed the seals, but instead, per s. 78.3 of the Fisheries Act , as the employer of Haeden David Jeffery Swirski, who was the individual who disturbed the seals on July 8,

Section 78.3 of the Fisheries Act states: Offences by employers 78.3 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused. [ 3 ] Four exhibits have been filed with the Court as part of the sentencing: Exhibit 1: A silver fob containing surveillance video of the offences, which the prosecutor played in Court during the sentencing.

Exhibit 2: A Violations List for Ireland, confirming two February 10, 2019, violations: i. contravention of s. 33(2)(

a) of the Fishery (General) Regulations , to wit: failure to return a fish incidentally caught forthwith t o the place from which it was taken; and ii. contravention of s. 22 of the British Columbia Sport Fishing Regulations , to wit: being a licence holder who caught and retained a lingcod or a chinook salmon, failed to record the catch on the licence immediately. Exhibit 3: An Impact Statement Regarding Feeding Seals in Prince Rupert prepared by Wendy R. Szaniszlo, Marine Mammal Biologist with Fisheries and Oceans Canada. Exhibit 4: Ireland’s 2022 Income Tax and Benefit Return (T1 2022). II.

SENTENCING POSITIONS [ 4 ] The Public Prosecution Service of Canada ("PPSC") seeks a global fine of $10,000. [ 5 ] Ireland seeks a global fine of $4,000, with two years to pay the fine. III. FACTS [ 6 ] Ireland operated West Coast Renegade Fishing Charters as a sole proprietorship. He owned two fishing vessels: i. The West Coast Renegade, and ii. The Reel Rooster. [ 7 ] On July 8, 2020, and August 12, 2020, Swirski was the skipper of the Reel Rooster and an employee or agent of Ireland. [ 8 ] On August 12, 2020, Ireland was the skipper of the West Coast Renegade.

July 8, 2020 [ 9 ] On July 9, 2022, Prince Rupert Port Security notified Fisheries and Oceans Canada ("DFO") that one of their surveillance camera operators observed and recorded an incident of people feeding seals on July 8, 2020, at the Cow Bay Marina in Prince Rupert, British Columbia. Prince Rupert Port Security subsequently provided copies of the surveillance video to DFO. [ 10 ] As seen on the surveillance footage, on July 8, 2020, at approximately 2:55 pm, the Reel Rooster returned to the Cow Bay Marina from a fishing charter led by Swirski.

There were eight individuals on board, including Swirski. [ 11 ] During the next hour and 15 minutes, Swirski cut and cleaned fish on the vessel's stern and fed offal and halibut carcasses to several seals. The video shows one to three seals in the frame adjacent to the docked ship. Swirski encourages and gives his client’s fish offal and halibut carcasses to feed and interact with the seals.

[ 12 ] There are four distinct types of interactions: i. Direct feeding (handing the seals food); ii. Indirect feeding (tossing fish into the water when a seal is present but not directly engaging with the seal). iii. Direct contact (touching the seals or engaging in 'tug-of-war' with the seals, tugging on a fish/fish carcass while the seal also tugs on it); and iv.

Non-contact (actions which show an attempt to engage with a seal, other than feeding, including hand gesturing or reaching out to the seal, dangling a fish for the animal, and splashing the seal). [ 13 ] In total, 50 feeding events occurred (23 direct and 27 indirect feedings), and 37 contacts occurred (10 direct and 27 non-contact) as follows: Swirski: Direct feed (handing a seal food) – 3 Indirect feed (tossing fish into the water when a seal is present but not directly engaging with a seal) – 22 Interaction contact (touching the seal or engaging in "tug-a-war" with the seal) – 3 Interaction non-contact (actions which show an attempt to engage with a seal, other than feeding, including hand gesturing or reaching out to the seal, dangling a fish for the animal, and splashing the seal) – 3 Clients (seven people in total): Direct feed (handing a seal food) – 20 Indirect feed (tossing fish into the water when a seal is present but not directly engaging with a seal) – 5 Interaction contact (touching the seal or engaging in "tug-a-war" with the seal) – 7 Interaction non-contact (actions which show an attempt to engage with a seal, other than feeding, including hand gesturing or reaching out to the seal, dangling a fish for the animal, and splashing the seal) – 24 [ 14 ] In addition to throwing offal directly and indirectly to seals, the events included: i. dangling bait over the boat and having the seal make numerous attempts to come high up out of the water to grab it out of their hand; ii. playing tug-o-war with the seal using halibut carcasses (3 different times); and iii. spraying a seal with a hose.

August 12, 2020 [ 15 ] On August 11, 2020, Fishery Officer (“FO”) Farrington received an email from the Prince Rupert Port Authority advising that fishing charter operators were feeding seals at the Cow Bay Marina. [ 16 ] On August 12, 2020, at approximately 3:00 pm, FOs Mott and Farrington set up at the Prince Rupert Port Authority office to watch charter boats enter the Cow Bay Marina and see how they interact with the seals. [ 17 ] The FOs initially observed several seals in the marina swimming.

Shortly after that, fishing vessels arrived at the marina and began cleaning fish, throwing waste overboard and feeding seals. FO Farrington contacted Prince Rupert Port Security and requested them to video record the feeding seal activity at the Cow Bay Marina. [ 18 ] At approximately 3:12 pm, the West Coast Renegade returned to the Cow Bay Marina from a fishing charter led by Ireland. [ 19 ] At approximately 3:45 pm, the Reel Rooster returned to the Cow Bay Marina from a fishing charter led by Swirski.

The Reel Rooster parked stern to stern with the West Coast Renegade. [ 20 ] FO Farrington took a series of short videos and photos of Ireland on-board the West Coast Renegade cleaning fish and entertaining his clients by feeding the seals. The FOs observed Ireland throwing his fish offal directly and indirectly to the seals. Ireland's clients were interested in what was taking place. At one point, Ireland's clients were sitting on an adjacent dock, and Ireland threw fish offal close to them. A seal swam close to the clients to retrieve the fish offal.

Several children were fishing behind the stern of Ireland's vessel on the dock, and Ireland threw fish waste in the water in front of the children. [ 21 ] FOs observed 41 feeding events involving Ireland and Swirski (18 direct and 23 indirect) on August 12, 2020, between approximately 3:30 and 4:22 pm.: i. Ireland fed seals from on-board the West Coast Renegade. There were 15 events of Ireland throwing fish offal directly to the seal and 14 indirect feeding events of him throwing fish offal into the water.

ii. Swirski fed seals from on-board the Reel Rooster. There were three events of Swirski throwing fish offal directly to the seal and nine indirect feeding events of him throwing fish offal into the water. [ 22 ] After Ireland cleaned the fish and his guests had left, the FOs went to the dock to speak with him. FO Farrington waited for the guests to leave because she did not want to disrespect Ireland or draw any negative attention to him.

During the plea inquiry, Ireland's counsel described the interaction between FO Farrington and Ireland in the following terms when asked if Ireland agreed with the PPSC's stated facts, Substantially, other than this: that when Ms. Farrington went down there, she was not in a good mood. She went down there screeching and yelling and screaming to such a degree that everybody else became upset. I can indicate that this went on for 20 minutes, her screeching. The people were all still there, including his children and all the people that had gone on the tour.

She was not speaking at any point; she was yelling and screaming. She was yelling and screaming that seals were the same as harbour seals or the same as sea lions and, you know, "Don't you know better?" and the rest of it. So she created quite a fracas down there with other boaters running to see what the issue was. Had he been told, on that day, what was the issue it would never have happened, and his comments came at the end of the 20 to 40 minutes that she was there screaming and yelling at him and the other gentleman.

And it -- I mean, this location where they do this is right outside the Department of Fisheries. He has, with the Department of Fisheries, fed seals, and so he's basically said, had they said anything, he would have stopped on the first day. He didn't know -- had no idea about it, and that's where he's at. ….. I can advise Your Honour that I have told my friend about this issue immediately upon receiving the first batch of this.

This is not news to him that Officer Farrington's conduct was very obnoxious to my client, especially in front of his kids, and he was quite able to deal with this . [ 23 ] As a result of defence counsel's submission regarding the facts and specifically the interaction between FO Farrington and Ireland, the Court determined that the interaction between FO Farrington and Ireland may be relevant to determining a fit sentence.

Accordingly, since Ireland did not dispute the basic facts concerning Counts 1 and 3 – but rather disagreed with the characterization of his interactions with FO Farrington on August 12, 2020 – after the guilty pleas were recorded, the Court held a hearing under s. 724(3) of the Criminal Code , often called a Gardiner Hearing , to determine the actual factual situation of the interaction between FO Farrington and Ireland. FO Farrington was the lone witness called.

The Interaction Between FO Farrington and Ireland [ 24 ] FO Farrington approached Ireland and told him that she had been watching him due to a complaint DFO had received about people feeding seals at the marina. She said to him that it was illegal to feed seals. She did so in a normal voice. [ 25 ] Ireland replied that he did not realize that it was unlawful and that it is part of the experience that people pay for. FO Farrington told him that was not the case. Ireland then stated, "What's the difference of whale watching? It's all about part of the experience." Ireland was defensive.

FO Farrington perceived his voice as being raised, so she raised her voice in reply, trying to overpower his voice to assert her command. At this point, FO Farrington and Ireland were upset and speaking with raised voices. It got very heated. As stated by FO Farrington, I think he was getting frustrated, and I was getting frustrated because he didn't understand what he was doing was wrong, and I was getting frustrated because he wasn't understanding why I was explaining to him what was wrong, so – and that's how his voice elevated, and so did mine.

And I was more concerned about the safety and the behaviour that this activity is creating. [ 26 ] FO Farrington went on to explain that feeding and interacting with seals was wrong and dangerous. She told Ireland about the safety issues of habituated seals dependent on humans giving them food. FO Farrington also explained that other people who used the dock were at risk of a dangerous encounter because of how conditioned the seals were. FO Farrington brought up the 2017 incident in Steveson, British Columbia, when a food-conditioned California sea lion pulled a girl into the water.

She told Ireland, "It's dangerous for children, especially for people that come down to the dock who don't know about the seals, and there was an incident in Steveston where there was someone pulled into the water." Farrington also referred to a recent attack by a wolf on a person in Port Edward, a small community not far from Prince Rupert. Ireland responded that they were his daughters and that they were fine. [ 27 ] Ireland did not appreciate the tone FO Farrington was using with him.

He believed that she was yelling at him and that it was unprofessional of FO Farrington and inappropriate in front of his children. Ireland told FO Farrington he did not care and argued with FO Farrington. Ireland said he was not doing anything wrong and his daughters had never had a problem. He also told FO Farrington not to worry about his children, as he was responsible for them. Finally, he commented that the other kids were not his problem. [ 28 ] FO Farrington left Ireland to speak with Swirski. She then returned to talk some more with Ireland.

FO Farrington showed Ireland photographs of Swirski from July 8, 2020, feeding and interacting with seals. Ireland said he did not care and said it was his guide's problem. [ 29 ] Near the end of FO Farrington's interaction with Ireland, temperatures reduced. FO Farrington apologized to Ireland for getting upset. Ireland told her that she needed to relax because she was yelling. FO Farrington said, "I'm sorry. I get so worked up about these issues." IV. IMPACT STATEMENT

[ 30 ] As mentioned earlier, exhibit 3 is the Impact Statement Regarding Feeding Seals in Prince Rupert, prepared by Wendy R. Szaniszlo, a Marine Mammal Biologist with the Pacific Biological Station at DFO. I note the following key excerpts: The Pacific harbour seal ( Phoca vitulina ) is a medium-sized phocid (true seal) that inhabits coastal waters of the Northeast Pacific Ocean. It ranges along the Pacific Rim from Baja California north to Bristol Bay in Alaska and west through the Aleutian Islands. It is the only true seal that resides year-round and breeds off the west coast of Canada.

Harbour seals are ubiquitous in coastal waters of British Columbia, and utilize over a thousand haulout sites to rest, moult and give birth. The birth season varies regionally, with most pups being born between mid-May and early-July in northern B.C., and between early-July and late-August in southern B.C. Aerial surveys conducted by Fisheries and Oceans Canada (DFO) indicate that the abundance of harbour seals in B.C. increased considerably since their protection in 1970.

Populations grew exponentially during the 1970s and 1980s, but growth rates began to slow during the 1990s and the population has now appear ( sic ) to have stabilized. In 2008 it was estimated that about 105,000 harbour seals inhabited coastal waters of B.C. (DFO 2010). The most recent count for the Prince Rupert survey area is 3,163 harbour seals, based on a 2017 aerial survey (DFO 2018). The updated BC-wide assessment is currently being compiled. …..

Feeding and interacting with seals has a high potential to result in habituation and food conditioning, particularly if the feeding and interactive activity is frequent. Habituation and food conditioning in seals results in an alteration of their natural behaviour, which ultimately puts their safety and the safety of the humans who come in contact with them at risk. ….. Habituation There is scientific evidence that seals habituate to humans. Habituation is a behavioural response that decreases due to recurrent stimulation (Rankin et al. 2009).

Habituation in harbor seals has been studied in both wild and captive settings, particularly to vessels, noise and handlers. Seals have been found to habituate to vessels (Fox 2008) and to underwater sound (Deecke et al. 2002). Past experience with vessels plays an important role in influencing pinniped responses to vessels (Schusterman 1981, Schusterman and Moore 1981) and in areas with high vessel traffic, harbour seals may habituate and show no evidence of disturbance (Johnson et al. 1989, Brasseur 1993). Habituation of seals has also been studied in captive situations.

Taylor et al. (1998) found that harbor seals become easily habituated to their handlers are able to identify individuals as familiar or unfamiliar ( sic ). Animals in captivity learn signals that predict when food is going to arrive (Young and Cipreste 2004). Food Conditioning Animals that learn to eat food from humans and from human sources are described as 'food-conditioned' (Breck et al. 2008; Mazur & Seher 2008) or 'conditioned' (Finn et al. 2008). They are conditioned to a human interaction with a food reinforcement.

This food-based behaviour is acquired through a process in which animals learn about human food sources through: 1) exposure to food-related stimuli in association with humans (e.g. humans feeding them); 2) the use of specific behaviours in response to those food-related stimuli (e.g. approaching vessels and humans on docks); and 3) a food reward that positively reinforces these behaviours (e.g. fish or fish scraps). (Whittaker & Knight 1998; Samuels & Bejder 2004; Young and Cipreste 2004; Breck et al. 2008; Donaldson et al. 2012).

Intentional feeding can reinforce certain conditioned behaviours such approaching (sic ) a human-related food source (Durden 2005; Finn et al. 2008). Effects of Habituation and Food Conditioning Deliberate and long-term provisioning of food to wildlife has been shown to alter natural behaviour patterns and affect their population levels (Orams 2002). It has also resulted their habituation to humans and their dependency on humans to provide food (Orams 2002). There are many potential consequences to feeding and or attempting to feed seals. Feeding seals alters their natural behaviour.

It interferes with their ability to hunt and feed and puts them at risk of injury by conditioning them to approach vessels and people for food. Feeding seals causes them to lose their natural wariness of humans and vessels and conditions them to approach and beg for food handouts rather than foraging for natural prey. Seals can become sick if they are given spoiled food. Approaching vessels puts them at greater risk of injury, particularly from propellers.

Sea lions have been known to closely follow vessels when fish cleaning is actively occurring and fish scraps are being thrown into the water (Szaniszlo personal observations). Additionally, seals and sea lions may begin to take bait and fish from fishing gear, increasing their risk of entanglement or ingestion of fishing gear (Figure 1 ). Entanglement and ingestion of fishing gear results in injury or death of the animal and poses a nuisance and risk to fishermen. There is potential for intentional harm to seal and sea lions when people are frustrated with their nuisance behaviour.

Seals and sea lions can become aggressive when seeking food and are known to bite or injure people when teased or seeking food. In 2017 a food-conditioned California sea lion pulled a child into the water in Steveston, BC. Conclusion There is significant scientific evidence that approaching and feeding wildlife can result in habituation and food conditioning. Repeated and persistent feeding of seals has the potential to negatively affect the normal life processes of seals and cause long-term harm.

Attempting to feed a seal also puts both animal and human safety at risk. V. CURTIS MALCOLM IRELAND [31] Ireland is now 41 years of age. He has three children that he supports, ages 13, 15 and 18. They live in the Okanagan area ofBritish Columbia, resulting in Ireland incurring significant expenses managing his visits with the children.

He also pays approximately$1,700 monthly in child support, although his child support obligation will be readjusted to approximately $1,267 once his eldestdaughter turns 19 in the Fall of 2023. [32] Ireland has two sources of income: during winters he works in the logging industry, and during tourist season he operates hisnow-incorporated fishing charter business. In 2022, he earned $81,904 in total income. [33] Ireland owns his home in Terrace, which he estimates is valued at $455,000.

He also estimates approximately $100,000 in equityin his fishing charter business. [34] Ireland has considerable expenses related to his separation from his children’s mother and the operation of his fishing charterbusiness. He remortgaged his house and now carries a $355,000 mortgage. He also borrowed $100,000 from his mother. Ireland paysapproximately $2,300 per month towards his mortgage and an additional $350 per month to his mother. VI. DISCUSSION [35] Ireland has pled guilty to two regulatory offences. In R. v.

Kalia Resources, 2022 BCPC 304, Judge Reeves set out the basicframework 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. As a result, within regulatory prosecutions, the protection of individualrights are to be applied less stringently and with a greater focus on enforcement than in criminal prosecutions (R. v.

Wholesale TravelGroup Inc., at pp 216 – 218). Marine Mammal Regulations [36] Seals are marine mammals. The Marine Mammal Regulations set out the law related to interacting with seals. All commercialbusinesses, including fishing charter and eco-tour operators, must know and follow the law. The current version of the Marine MammalRegulations took effect on November 2, 2018. Section 7(1) of the Marine Mammal Regulations states: 7

(1) No person shall disturb a marine mammal except (

a) when carrying on a work, undertaking or activity that is authorized, otherwise permitted or required under the Act; (

b) when fishing for marine mammals under the authority of these Regulations; (

c) in the manner set out in a licence issued under the Fishery (General) Regulations authorizing them to fish for marine mammals forexperimental, scientific, educational or public display purposes; or (

d) in the manner authorized under the Species at Risk Act. [37] Section 7(2) of the Marine Mammal Regulations defines the term "disturb"

(2) For the purposes of subsection (1), disturb includes to approach the marine mammal to, or to attempt to, (

a) feed it; (

b) swim with it or interact with it; (

c) move it or entice or cause it to move from the immediate vicinity in which it is found; (

d) separate it from members of its group or go between it and a calf; (

e) trap it or its group between a vessel and the shore or between a vessel and one or more other vessels; or (

f) tag or mark it. [38] The 2018 amendments to the Marine Mammal Regulations clarified what activity would constitute a disturbance and replacedregional guidelines considered voluntary, haphazardly applied, and not consistently followed. The amendments to s. 7 of the MarineMammal Regulations allow for consistent, uniform application.

[39] The Regulatory Impact Analysis Statement published on June 22, 2018, alongside the amendments to the Marine MammalRegulations in the Canada Gazette,

Part II, Volume 152, Number 14, recognized that: Marine mammal watching, often referred to as whale watching, includes tours by boat, by air or from land to see, swim with, and/orlisten to any of the 83 species of whales, dolphins and porpoises and other marine mammals, such as seals, that are found in Canadianfisheries waters. Marine mammal watching can have important educational, environmental, scientific, and other socio-economic benefits.The public’s interest in whale watching has been increasing over the past three decades. …..

Well-intentioned watchers may unknowingly disturb marine mammals, displacing them from their habitat or disrupting them during theirnormal activities, such as nursing and feeding. If not done correctly, watching marine mammals may increase the risk of injury throughcollisions with boats or being slashed by their propellers. Whale watching activities can disturb individuals and groups and suchdisturbances, if repetitive and persistent over time, can produce harmful conservation impacts. A number of studies from around theworld report on the various impacts that may be associated with whale watching.

Approaching marine mammals too quickly, coming tooclose or making too much noise risks disrupting their activities and needlessly stressing the animals. Our impacts on them must beminimized if we are to continue watching them. [40] The Regulatory Impact Analysis Statement noted that the objectives of the amendments to the Marine Mammal Regulationswere: 1.

To reduce human disturbances of marine mammals and to provide rules that can be uniformly administered and enforceable, toincrease public awareness that human activities can have adverse effects on marine mammals, to regulate activities that may disturbmarine mammals but have a greater goal of research and wellness for them (such as scientific research), and to ensure mandatoryreporting of collisions and accidental contact between vessels and marine mammals. 2.

To reduce the disturbance caused to marine mammals by whale watching activities, by providing for rules that are mandatory,enforceable, uniformly applicable, and easy to communicate. The amendments provide a regulatory framework that can be varied andadjusted over time to maintain an appropriate balance between managing disturbance to marine mammals and allowing public access towhale watching. 3. To increase public awareness that certain human activities negatively affect the life processes of marine mammals. 4.

To provide a clear legal basis for DFO to authorize activities that may disturb individual animals but that are generally beneficialto the well-being of marine mammals, such as scientific research. 5.

To ensure mandatory reporting of collisions and accidental contact between marine mammals and vessels or fishing gear, thusimproving the ability of DFO to monitor the health of marine mammal populations and respond quickly to animals in distress. [41] The Regulatory Impact Analysis Statement confirmed that the marine mammal watching industry is accepted worldwide as asustainable non-consumptive use of marine mammals.

Furthermore, responsible viewing of marine mammals allows people of all agesand cultures to become familiar with marine mammals and their critical habitat, which in turn assists conservation efforts on a local,regional, national and international level. Environmental Regulatory Case Law [42] In R. v. Brown, 2010 BCCA 225, a case that involved the harmful alteration, disruption or destruction of fish habitat contrary tothe Fisheries Act, our Court of Appeal confirmed that the leading case on the principles of sentencing for environmental offencesis Terroco Industries Limited, 2005 ABCA 141.

In doing so, the Court of Appeal reinforced that sentencing principles for environmentalregulatory offences require a unique approach, specifically emphasizing culpability, past involvement with the authorities, acceptance ofresponsibility, harm, and deterrence. [43] Just over five years ago, Justice Punnett released his decision in R. v. Schafhauser, 2017 BCSC 2287.

Schafhauser was asummary conviction appeal involving a commercial salmon fisher in Haida Gwaii who, like Ireland, was subjected to DFO action.Justice Punnett confirmed that environmental regulatory legislation protects and preserves valuable resources. He stressed thatinfringements are to be taken seriously: [11] …Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused and generally ofother members of the public who are inclined to act in the same manner.

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

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

Brown, 2010 BCCA 225, at paragraph 13). [44] Upon reviewing Terroco Industries Limited, Brown, and Schafhauser, I conclude that the Marine Mammal Regulations protectand preserve a valuable resource, our wildlife. Just like with the Fisheries Act, the predominant sentencing consideration for offencescommitted contrary to the Marine Mammal Regulations is deterrence, specifically of the person being sentenced and generally of othermembers of the public inclined to do the same or similar acts. Contraventions of the Marine Mammal Regulations are taken seriously.

[ 45 ] In crafting a sentence unique to Ireland, I have considered his culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, and deterrence. I have also kept in mind that unlike in R. v. Stevikova , 2022 BCSC 2094 , the present case does not involve a "joint submission" as to the appropriate sentenc e.

Accordingly, I have paid particular attention to the rationale behind the respective parties' sentencing positions and the interplay between the principles and purposes of sentencing set out in ss. 718 , 718.1 and 718.2 of the Criminal Code and the principles of sentencing for environmental offences set out in Terroco Industries Limited , Brown , and Schafhauser . Culpability [ 46 ] I accept that Ireland genuinely wanted his clients to have a once-in-a-lifetime experience.

His motive for feeding and interacting with the seals was to give his clients an experience they would remember for life, leading to profit for his business as clients spread the word about the fantastic time guests of West Coast Renegade Fishing Charters have. Nonetheless, Ireland did not know the laws for operating a fishing charter and eco-tour business such as West Coast Renegade Fishing Charters. He also failed in his duty to ensure Swirski was trained correctly, supervised and knowledgeable about the law. In other words, there was a failure to exercise due diligence.

Prior Record [ 47 ] As set out in Exhibit 2, Ireland has two previous violations, both from February 10, 2019: i. contravention of s. 33(2)(

a) of the Fishery (General) Regulations , to wit: failure to return a fish incidentally caught forthwith t o the place from which it was taken; and ii. contravention of s. 22 of the British Columbia Sport Fishing Regulations , to wit: being a licence holder who caught and retained a lingcod or a chinook salmon, failed to record the catch on the licence immediately. Acceptance of Responsibility and Remorse [ 48 ] Ireland has pled guilty. In doing so, Ireland has now taken responsibility for the offences, which he was unprepared to do on August 12, 2020.

He has also saved the justice system precious time, resources, and expenses. To the extent that guilty pleas avoid trials, Ireland has enabled our justice system to function more efficiently and freed up Court time for other matters. He has also saved witnesses, except for FO Farrington, the experience of having to attend and testify at trial. [ 49 ] Now fully aware of the law, Ireland has expressed remorse for failing to know and abide by the law through his counsel and in the words he spoke to the Court when asked if he wanted to address the Court.

He is adamant that had he known the law, he would have obeyed it. Furthermore, he stated, and I accept, that had DFO contacted him on July 8, 2020, or shortly after that concerning the Reel Rooster and the unlawful actions of Swirski on that date, he would have immediately corrected his and West Coast Renegade Fishing Charters’ methodology and the offence in count 3 would not have taken place. I have no reason to doubt Ireland’s sincerity.

Damage or Harm Done [ 50 ] The Impact Statement Regarding Feeding Seals in Prince Rupert provides an excellent overview of the damage or harm done in the present case. [ 51 ] There is significant scientific evidence that approaching, interacting with and feeding seals can result in habituation and food conditioning. Repeated and constant interaction with seals negatively affects the normal life processes of seals and causes long-term harm. Attempting to feed a seal also puts both animal and human safety at risk.

Deterrence [ 52 ] The paramount principle of sentencing in cases involving offences against the Fisheries Act and the Marine Mammal Regulations is specific and general deterrence. [ 53 ] I am satisfied that the fines to be levied – combined with what has been a time-consuming and, no doubt, costly process for Ireland to engage in – will act to deter him specifically as he continues to engage in the fishing charter and eco-tour business . [ 54 ] In considering general deterrence, I adopt the words of Judge Mrozinski as set out in the second half of paragraph 44 in R. v.

McKinnell Fishing Ltd ., 2016 BCPC 466 : There may have been a time in the distant past when a mind of a practical bent might have wondered about the futility of the finer points of fisheries laws. In the present day, there is no room for such complacency. In a world in which resource sustainability is strained, not just by demand but by the environment itself, the value of regulatory compliance cannot be overstated . [ 55 ] The sentence I impose must deter others engaged in the fishing charter and eco-tour business who fail to account for the minutiae of statutory requirements.

The sentence must recognize that a tedious review of applicable laws cannot be forgotten or dismissed. Fishing charter and eco-tour operators and participants must know the current regulations. [ 56 ] When viewed in context, the sentence I am imposing will deter other fishing charter and eco-tour business es. The ruling will encourage compliance with the Marine Mammal Regulations . Aggravating Factors [ 57 ] As the owner/operator of West Coast Renegade Fishing Charters, Ireland had a duty to know and follow the law.

He did not. [ 58 ] Ireland's and Swirski's actions were deliberate and undertaken with a view to profit financially.

[ 59 ] The offences occurred on different dates, showing a pattern of disdain for the law. [ 60 ] The offences were committed to entertain clients and the public, including children. [ 61 ] The offences show complete indifference to the consequences to the seals.

Mitigating Factors [ 62 ] Ireland has entered a guilty plea and taken responsibility for his actions and the actions of Swirski. [ 63 ] Ireland has expressed genuine remorse for not knowing the law nor appreciating the consequences of his and West Coast Renegade Fishing Charters' interactions with the local seal population. [ 64 ] Ireland has a minimal fishing record, comprised of two Violation Ticket infractions. Moral Blameworthiness [ 65 ] Moral blameworthiness in criminal offences tends to be greater than in regulatory offences. This distinction is appropriately reflected in the sentence imposed.

While of limited application, assessing an offender's moral blameworthiness in committing an environmental regulatory offence remains relevant and is implicit in applying the principle of proportionality . [ 66 ] In considering the overall relevance of moral blameworthiness in regulatory sentencing, the Ontario Court of Appeal in Ontario (Ministry of Labour) v. New Mex Canada Inc. , 2019 ONCA 30 , teaches: 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 . [ 67 ] Employers and workers in the fishing charter and eco-tour industry must be aware of their obligations under the Marine Mammal Regulations to ensure the health and safety of their clients, the general public and the seals. [ 68 ] Ireland’s moral blameworthiness is in the middle of the scale.

I acknowledge that Ireland did not set out to break the law. On the other hand, Ireland did not undertake the actions required of a responsible fishing charter and eco-tour business owner/operator to ensure he knew and followed the Marine Mammal Regulations . Parity and Proportionality [ 69 ] The PPSC proceeded by way of

summary conviction.

Section 78(

a) of the Fisheries Act sets the applicable penalties for violating s. 7 of the Marine Mammals Regulations : Punishment not otherwise provided for 78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both. [ 70 ] Concerning environmental regulatory offences, there is a shift in emphasis from punishing acts involving moral fault to protecting public and societal interests, including wildlife. The focus in these cases is on preventing future harm by enforcing a minimum standard of conduct. The aim of any prosecution for these regulatory offences is forward-looking.

It is to induce compliance with rules to protect the environment, including seals, and benefit society. [ 71 ] In fashioning a sentence specific to Ireland, I have considered the Supreme Court of Canada's teachings in R. v. Lacasse , 2015 SCC 64 , and the case law provided by counsel. [ 72 ] In Lacasse , the Supreme Court of Canada instructed that the overarching principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, the latter of which means the offender's moral blameworthiness. In my view, Lacasse applies to regulatory offences.

The principle of parity, which requires a consideration of sentences imposed on similar offenders in similar circumstances, informs the proportionality analysis, ensuring that the punishment is both individually proportionate and proportionate with the punishment given to other offenders in similar situations. [ 73 ] The now Chief Justice Wagner cautioned in paragraph 54 in Lacasse : [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account.

Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.) : It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . .

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]

Relevant Related Sentencing Case Law [ 74 ] Counsel in the present case have not provided the Court with any sentencing cases involving the disturbing of seals contrary to s. 7 of the Marine Mammal Regulations . Moreover, the prosecutor told the Court that he was unaware of any sentencing cases involving the disturbing of seals contrary to s. 7 of the Marine Mammal Regulations . [ 75 ] I am aware of three decisions of this Court that consider s. 7 of the Marine Mammal Regulations , albeit they all concern disturbing orcas and all three decisions predate the 2018 amendments to the Marine Mammal Regulations : 1.

R. v. Bohn , 2003 BCPC 210 ; 2. R. v. Smith , unreported, January 30, 2014, Provincial Court of British Columbia, Campbell River Registry File No. 35578, Sutton, PCJ; and 3. R. v. Peterson , unreported, August 7, 2012, Provincial Court of British Columbia, Campbell River Registry No. 35577, Saunderson, PCJ. [ 76 ] The defendant in Bohn pled guilty on her first court appearance to unlawfully disturbing a marine animal (a killer whale) in violation of s. 7 of the Marine Mammal Regulations and thereby committing an offence contrary to s. 78(

a) of the Fisheries Act . Ms. Bohn admitted petting a 3-year-old male orca known as Luna, who was separated from his family group and settled in remote waters on the west side of Vancouver Island, which is within his family’s year-round range. Judge Doherty did note that there was a large sign Ms. Bohn disregarded and that Ms. Bohn was motivated by curiosity to approach Luna and pet him. [ 77 ] Judge Doherty ordered Ms.

Bohn to pay a $100 fine and stated that the fine was “not meant to establish a standard.” It is an interesting case from 20 years ago, standing for the proposition that the community is placed on notice that the harassing of marine mammals will not be tolerated and significant fines will attach to violations against s. 7 of the Marine Mammal Regulations in the future. [ 78 ] In Smith , Judge Sutton convicted the defendant following a trial for unlawfully disturbing a marine mammal ( “northern resident” killer whales ) in August 2010 in violation of s. 7 of the Marine Mammal Regulations and thereby committed an offence contrary to s. 78(

a) of the Fisheries Act . Smith was working as a guide for a local whale-watching operation near Camp Point and Hickey Point in the Johnstone Strait. He repeatedly put his whale-watching vessel ahead of a travelling pod of orcas, which disturbed the “resting line” of the pod. He also got too close to the orcas. It was Smith’s second conviction for disturbing orcas . [ 79 ] Judge Sutton fined Smith $6,000. He also gave Smith a ten-year prohibition from engaging in the whale-watching industry or adventure tours in Canadian waters.

He ordered that Smith could not possess or acquire any legal, equitable or other interest in any such vessel involved in the industry. The Court emphasized that the primary sentencing goal must relate to the resource itself, which is the protection of orcas. Accordingly, specific and general deterrence was the most important sentencing objective. [ 80 ] In Peterson , the defendant was convicted of two offences in Discovery Passage that occurred in October 2010: 1. did unlawfully disturb a marine mammal when not fishing for marine mammals under the authority of the Marine Mammal Regulations contrary to

Section 7 of the Marine Mammal Regulations , and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act. 2. did unlawfully harass an individual of a wildlife species that is listed as an extirpated species, and endangered species or a threatened species, contrary to Section 32(1) of the Species at Risk Act . [ 81 ] Peterson deals with the disturbance of orcas contrary to s. 7 of the Marine Mammal Regulations by a leisure boat operator who repeatedly approached the orcas for photographs. Peterson initially saw the orca pod from 60 meters away and approached them in his boat four to five times, with the final approach being around 15-25 meters behind the whales.

Counsel presented a joint submission to the Court of a $7,500 global fine and an Order of the Court that Peterson publishes a letter, filed with the Court as part of the joint submission and titled This Could Happen to You , in one of the two local newspapers as either a free-standing

article or as an advertisement at his own expense. The purpose of the letter was to draw awareness to residents of the area that not observing the DFO guidelines will not only disturb and harass orcas, but offenders would incur a severe financial penalty. Judge Saunderson accepted the joint submission, and the Campbell River Mirror published the letter as an

article entitled Steer clear of killer whales or face hefty fines , still available for reading on the Internet at https://www.campbellrivermirror.com/news/steer-clear-of-killer-whales-or-face-hefty-fines/ . Ability to Pay Fines [ 82 ] Section 734(2) of the Criminal Code , which applies to federal legislation, including the Fisheries Act and the Marine Mammal Regulations , makes it clear that when determining appropriate fine amounts, I cannot mindlessly pick dollar figures out of the air. I must consider Ireland's ability to pay the fines. Section 734(2) reads, Offender's ability to pay

(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this

section only if the Court is satisfied that the offender is able to pay the fine or discharge it under

section 736. [ 83 ] While I appreciate that it is improbable that mandatory filing of financial information by defendants in a regulatory or criminal case will ever occur – unlike what happens in family law cases where parties file a Financial Statement so that the judge or adjudicator has a holistic view of the finances available – until defendants start to provide realistic and fulsome financial information to the Courts for use at sentencing, the ability of the Court to assess and determine the impact of a fine will be limited. [ 84 ] During a pre-sentencing Application For An Order compelling the defendant to provide financial documents to the prosecution to

assist in determining an appropriate sentencing position, the Court in Ontario (Electrical Safety Authority) v. Broomfield, 2019 ONCJ 454 , reviewed forty cases. The Court summed up the predicament as follows: [1] In order for a sentencing judge to properly arrive at a fit and just sentence for the offender of a regulatory offence, which would reflect the gravity of the offence committed and the offender's moral blameworthiness, the sentencing judge should be provided with all relevant information about the offender, especially where imprisonment is a possibility.

And, where fines and restitution are likely sanctions for a regulatory offence, then the sentencing judge before deciding on the appropriate fine or the amount of restitution to be paid, would need to have information about the offender's economic circumstances in respect to their ability to pay. [2] For the present proceeding involving regulatory offences, which has now entered the sentencing phase, the prosecution contends that the offender's financial documents for himself and his business need to be disclosed or produced to the prosecution, so that the prosecution can fulfill its duty to properly prepare for sentencing submissions and do its job in suggesting or seeking the appropriate fine as a sentence for the offender -- as well as for this Provincial Offences Court to properly do its job in sentencing the offender. [ 85 ] The 95-page analysis performed by the Court in Broomfield confirms the difficulties with the present state of the law. [ 86 ] In the present case, defence counsel providing the Court with an understanding of Ireland's current financial position has assisted the Court in crafting fines that will act as specific deterrence for Ireland and general deterrence for other fishing charter and eco-tour business es.

As stated above, the combination of the fines I am imposing plus the entire experience will serve as a specific deterrence to Ireland.

I have confidence that the penalties I am imposing will meet the goal of general deterrence and encourage compliance by others with the Marine Mammal Regulations . [ 87 ] There is no evidence or argument by the prosecutor that Ireland is misleading the Court or otherwise being untruthful when he submits that he is currently living off of his $81,904 annual income , is approximately $455,000 in debt, with a house currently valued at $455,000, and his fishing charter company having a net worth of approximately $100,000. [ 88 ] Within the regulatory sentencing case law are numerous authorities at the Provincial Court level and in the appellate courts supporting the proposition that if an offender is unable to pay a fine that is otherwise appropriate, additional time should be given to the offender to pay the fine, as opposed to reducing the fine amount.

For instance, in the latter half of paragraph 13 in Schafhauser , Justice Punnett summed the principle in the regulatory context as follows: …I note, as well, that where there is an issue, and there apparently is not in this case, with the ability to pay, this should be remedied by additional time to pay and not by diluting the deterrent nature of the sentence by lowering the sentence amount ( see Brown at paragraphs 20 to 22 ). [ 89 ] I am mindful that $10,000 in fines for a person who makes $288,500 a year in income is not the same as $10,000 in fines for a person earning British Columbia's minimum wage of $16.75 per hour, never mind a person such as Ireland, who is currently reporting an annual income of $81,904 and who has three children to support and considerable financial liabilities. [ 90 ] Most reported sentencing cases tell readers what the dollar amounts of fines imposed are but do not express the fine amounts as a percentage of annual income or the offender's net worth. [ 91 ] In my view, the better way of determining financial penalties is to express the dollar amounts as a percentage of annual income and, in the best-case scenario, also as a percentage of the offender's net worth.

In doing so, real meaning is given to the dollar amounts imposed as fines. Fines then have the same impact on all offenders, regardless of income or net worth. It also puts teeth into general deterrence, as others can know that fines imposed represent a percentage of income and assets instead of just a randomly selected number. [ 92 ] Given what defence counsel submitted on behalf of Ireland and his current financial situation, I am satisfied that he can pay the $10,000 in fines requested by the PPSC. Still, he will require significant time to do so. [ 93 ] Ireland's current income is $81,904 per annum.

So, in reality, the PPSC is seeking a financial penalty representing just under one and a half months’ gross income for Ireland or 12.2 percent of his gross annual income. Even if he could pay $682.53 per month, representing ten percent of his monthly gross income, towards the $10,000 in fines, Ireland would take approximately 14.6 months to pay it.

However, given his current financial situation, it is unrealistic to expect Ireland to find $682.53 each month to pay towards the fines. [ 94 ] How, one asks, can a fine be fair or act as general deterrence for others without considering the income and circumstances of the person being penalized? The impact of a $10,000 fine on a person in Ireland's current situation is different than that of a $10,000 fine on a person making British Columbia's minimum wage, never mind a person making $288,500 a year or a corporation with assets and significant annual revenue.

By viewing the fine as a percentage of income and net worth, true parity in sentencing can be achieved, and tangible meaning can be given to general deterrence. Sentence Imposed [ 95 ] I have determined a unique sentence for Ireland that addresses all the purposes and principles of sentencing required in cases of environmental regulatory offences. In doing so, I have considered the purposes of the Marine Mammal Regulations , the teachings in the case law and the submissions of the prosecutor and defence counsel at great length.

I have also considered Ireland's age and business prospects. [ 96 ] To discourage other fishing charter and eco-tour operators from interacting with seals and violating the Marine Mammal Regulations , I accept the PPSC’s proposition that significant fines are required. Accordingly, Ireland's sentence should act as a substantial deterrence to others. [ 97 ] Concerning count 1, there will be a fine of $5,000. The time to pay the fine will be December 31, 2029.

[ 98 ] Concerning count 3, there will be a fine of $5,000. The time to pay the fine will be December 31, 2029. __________________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia CORRIGENDUM - Released June 20, 2023 In the Reasons for Judgment dated June 20, 2023, the following change has been made: [1] The Style of Cause has been amended from Reasons for Judgment to Reasons for Sentence . [2] The Judgment has been corrected to reflect this change. _____________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia