R. v. McKinnell Fishing Ltd. Date:, 2017 BCPC 236

Citation: R. v. McKinnell Fishing Ltd. Date: 20170609 2017 BCPC 236 File No: 34381-2-C Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MCKINNELL FISHING LTD. GARY LORNE MCKINNELL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: N. Fraser Counsel for the Defendants: C. Harvey, Q.C. Place of Hearing: Duncan , B.C. Dates of Hearing: February 9, March 31 and May 16, 2017

Date of Judgment: June 9, 2017 [ 1 ] THE COURT: This matter is before me for sentencing on five counts of fishing during a closed time, contrary to s. 63 of the Pacific Fishery Regulations , and two counts of failing to supply complete and accurate information in a harvest log concerning areas fished in, contrary to s. 22(7) of the Fisheries (General) Regulations . [ 2 ] The defendant, McKinnell Fishing Limited, has previously been sentenced on three counts on this same information, following the trial in this matter. [ 3 ] In reasons for conviction and acquittal dated July 16, 2015, I concluded, among other things, that the defendant had contravened s. 63 of the Pacific Fishery Regulations by fishing during a closed time as charged.

In particular, I was satisfied that the defendant was engaged in the act of fishing when it hauled its crab traps onto its vessel while the vessel was in either the Stuart Channel dioxin closure or the Kuper Island conservation closure. [ 4 ] I did, however, accept the testimony of Kevin McKinnell that although the traps were hoisted aboard his vessel while the boat was inside these closed areas, the traps had not been set down on the ocean floor within the closed areas. [ 5 ] In any event, having found the actus reus of these offences was proven, I held that the defendant had, nonetheless, made out a case for due diligence, such that it was entitled to an acquittal on the charges of fishing in a closed time. [ 6 ] With respect to the failure to provide accurate information in the harvest log, I found myself in agreement with Judge Wood who had decided a similar issue in an earlier case known in this trial as McKinnell Number 1.

Judge Wood had concluded that the defendant was careless, to be sure, but for the most part had simply continued a longstanding practice with no objection from the Department of Fisheries and Oceans (“DFO”) until it laid charges in both McKinnell Number 1 and a year later in McKinnell Number 2. As such, I acquitted on those two counts as well. [ 7 ] On

summary conviction appeal, these acquittals were reversed by Baird J. [ 8 ] With regard to the charges of fishing during a closed time, Justice Baird concluded that Mr.

McKinnell’s evidence regarding the efforts he had made to stay out of the closed areas as he fished fell a good distance short of establishing due diligence, and that he was not able to show in a positive way that the requisite due care was taken to avoid running afoul of the legislation. [ 9 ] With regard to the harvest logs, Justice Baird found the defendant could not have had reason to believe that he was in compliance with the rules governing harvest logs, having failed to learn what was required to produce accurate records in the first instance.

Thus, the defendant in this proceeding is being sentenced for failing to have either taken, or shown itself to have taken, reasonable steps to comply with its regulatory obligations. [ 10 ] Both at trial and at this sentencing hearing, the defendant says it is important to bear in mind that the Crown in the form of fisheries officers has, for the most part, ignored this careless behaviour such that the sentences on all counts should be minimal.

The defendant seeks a conditional discharge. [ 11 ] For its part, the Crown seeks a fine of just under $50,000 on these seven counts, emphasizing the danger to the fishery and the public in this instance. [ 12 ] As in the previous sentencing, the parties are at a considerable distance in their proposed disposition and, again, that appears to be due largely to their disparate views on the purposes of sentencing in the regulatory context. [ 13 ] The Crown points to s. 78 of the Fisheries Act , which provides that a person convicted of an offence punishable on

summary conviction is liable for a first offence to a fine not exceeding $100,000. The Crown seeks nothing like this amount, but notes that pursuant to s. 78.1 where any contravention of the Fisheries Act is committed or continued on more than one day, the contravention constitutes a separate offence for each day.

The Fisheries Act provides for substantial fines, signalling Parliament's concern for contraventions of this legislation and a reflection obviously of the importance of the management of the fisheries resource for all Canadians. [ 14 ] In the case at bar, the defendant has now been convicted of offences which range over a period of several days. As such, the Crown seeks not insubstantial fines for those offences of fishing in a closed area, particularly in the Stuart Channel dioxin closure. It seeks a fine in the amount of $12,500 for each of Counts 1, 3, and 9, all related to the Stuart Channel closure.

It seeks a fine in the amount of $2,000 for Count 11 and $4,000 for Count 13, both related to the Kuper Island seasonal closure. Finally, it seeks a fine in the amount of $3,000 for each of Counts 33 and 35 in respect of the defendant's failure to provide accurate information in its harvest logs on the dates charged. [ 15 ] As a general matter, this sentencing, like all sentencing in the criminal context, must comport with the purposes and principles of sentencing set out in s. 718 and 718.2 of the Criminal Code .

The Criminal Code establishes that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more objectives.

These objectives include denunciation, deterrence of this offender and others, separating the offender from society where necessary, rehabilitation, repairing harm, promoting a sense of responsibility in the offender, and acknowledging the harm caused to the victim in the community. [ 16 ] In determining a fit sentence, the court must consider the aggravating and mitigating circumstances, all available sanctions other than imprisonment that are reasonable in the circumstances, and the least restrictive sanction that is appropriate.

Additionally, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[ 17 ] In support of its submissions in this sentencing, the Crown produced seven authorities in which the defendant received significant fines for similar offences, at least with respect to fishing during a closed time. [ 18 ] In the first, R. v. Dinh , Unreported, PCBC Sechelt Registry No. 15404-2-C, December 6, 2010, the accused was fined $12,500 for the offence of fishing with traps during a closed time in a contaminated area.

Other penalties imposed included an additional fine in the amount of $12,500 for selling the fish and a further order to pay DFO $25,000, forfeiture of his traps, and so forth. [ 19 ] There are no reasons for sentence in this case. Rather, the Crown has included an occurrence report which outlines the facts presumably used on sentencing. It appears the defendant was visibly within a closed contaminated area when seen hauling his traps on board. The defendant also had an electronic monitoring system on board, but the system was not engaged. [ 20 ] In R. v.

MacLeod , Unreported, PCBC Duncan Registry No. 18548, November 21, 1997, the defendant, who was caught twice harvesting crab in the same contaminated areas as in this case, was fined $2,000 for the first offence and $4,000 for the second. The defendant was also ordered to forfeit his fishing gear and boat valued at $13,500. [ 21 ] It is important to note the finding in McLeod that in each instance charged, the defendant was found to have set his traps down in a contaminated area.

In the first instance, the defendant was warned by fisheries officers of the dangers of fishing in an area as he was also selling his catch. The second offence, two weeks later, exacerbated matters considerably. The sentencing judge emphasized not only Mr. MacLeod's wilful disregard for the law, but also a complete disregard for the health of persons who might subsequently ingest the crab. It was held in that case that it was not unfair for the sentencing judge to refer to cases involving the harvesting of shellfish taken from contaminated areas. [ 22 ] In R. v.

Hau , Unreported, PCBC Surrey Registry No. 94839-03-DC2, February 15, 1999, the defendant, who had a previous conviction for other fisheries offences, received a fine in the amount of $10,000. This sentencing was by way of a joint submission. Crown explained to the court that the fine was with respect to the offence of fishing over the U.S./Canada boundary line and was intended to address concerns around the preservation of the fishery. [ 23 ] The accused in R. v.

Hicks , Unreported, PCBC Duncan Registry No. 28511, November 7, 2008, was fined $5,000 on conviction of two counts of fishing during closed times in the Swiftsure Bank conservation closure. Mr. Hicks had been convicted two years earlier for fishing in the same closed area. [ 24 ] Likewise, in R. v. Marvin Johnny and Kevin Sylvester , Unreported, PCBC Duncan Registry No. 27361-2-C, November 14, 2007, the court sentenced Mr. Johnny, who had four previous convictions, to 15 months in custody for harvesting shellfish in a contaminated area and selling those shellfish. [ 25 ] In R. v.

Kern , Unreported, PCBC Port Alberni Registry No. 40028-3-C, November 27, 2007, the defendant was fined $12,500 for commercially fishing in a conservation area. As with the other cases, Mr. Kern had a previous conviction. [ 26 ] Finally, in R. v. Hoan et al. , 2000 BSCS 288, the accused, Mr.

Do, the master of the vessel, was fined $8,000 upon conviction for the offences of fishing on board a vessel in U.S. waters. [ 27 ] The defendants MacLeod, Howe, Hicks, Johnny, and Kern had all previously been convicted of offences under the Fisheries Act before sentencing on the cases that the Crown produced in this sentencing hearing. In many of these cases, the offenders were being sentenced for the second, third, or even fourth time for similar offences. [ 28 ] In MacLeod and Johnny there was clear evidence of illegal harvesting in a contaminated area.

The occurrence report in Dinh strongly suggests that the defendant was well inside the boundaries of the contaminated area as well. [ 29 ] In other instances, the defendants were found to have fished in a closed conservation area. This too is a significant concern for the fishery, though not as significant to the fishery or the public as that arising from fish harvested in a contaminated area. [ 30 ] These cases support significant sentences reflecting the sentencing principles of both specific and general deterrence.

Although not stated, there may well also have been a measure of denunciation in the sentencing, particularly in those instances where fishers were knowingly harvesting a commercial catch well within contaminated areas. [ 31 ] The defendant submits that these cases are all distinguishable as being either far more egregious factually or involving offenders with a pattern of records of fisheries violations. [ 32 ] In this case, the defendant submits that it must be sentenced as if it were a first time offender, leaving aside a previous conviction arising out of the trial before Judge Wood in the trial known as McKinnell Number 1. [ 33 ] It is the case that when this information was laid in November 2012, the defendant had not yet gone to trial on any of the matters charged in McKinnell Number 1.

So, as Mr. Harvey submits, this is a sort of first conviction. Mr. Harvey urges the court to bear in mind, further, that his client has been in the crab fishery for three generations. [ 34 ] Additionally, Mr. Harvey submits that the defendant is really the victim of a change in enforcement practices and, as such, merits little in the way of penalty. He asks the court to consider what a fair and appropriate sentence is where there is a change in enforcement practices that has taken the defendant unaware.

This argument is a variation of the one made at trial, that the mere act of hauling a crab trap into a vessel did not amount to fishing. [ 35 ] In this iteration, the defendant submits that in general there would be no charge for the act of simply pulling a trap into a boat. In support of this submission, the defendant relies on the reasons of Judge Cowling in R. v. Morreau , Unreported, PCBC Nanaimo Registry No. 31737, and February 24, 1999.

There, the court wrote, in regard to a seiner, that once the net is pursed, the vessel is no longer considered to be actively fishing for enforcement purposes and should tide or currents take it over a boundary, no charge follows.

Likewise, as crabs are trapped only as they meander along the seafloor, the defendant submits that the act of hauling the trap is akin to the pursed seine net. As such, no enforcement should or ever did follow. [ 36 ] I regret that I cannot accept Morreau as it supports an absence of enforcement that has taken the defendant unaware. It is clear the defendant knew it was hauling traps in while its vessel was in a closed area, but took the view that this act in itself did not constitute fishing.

That is known to be wrong in law. [ 37 ] The defendant further took the position that its presence in a closed area while the vessel operator hauled his traps was unavoidable despite his best efforts, largely because the defendant chose to set his traps as close to the closed area as possible without being inside the boundary. This, too, has been rejected by the

summary conviction judge. [ 38 ] I accept that the law is as stated by the Crown. A fisher must account for winds and tides when fishing. It was put this way in R. v.

Deehan , Unreported, PCBC Port Hardy Registry No. 5074, December 10, 1986 which states that “the requirement for due diligence increases if the fisherman elects to fish closer to the line.” Absent proof of due diligence, the elements offer no excuse for fishing during a closed time. [ 39 ] The comments in Morreau cannot absolve the defendant in this case of liability for infringement of the fisheries regulations governing against fishing in a closed time.

It cannot, for that reason, justify the granting of a conditional discharge. [ 40 ] In determining the appropriate sentence, I find in this proceeding, as in my sentencing on the earlier convictions, that the sentencing objectives in regard to fisheries offences must be primarily that of general deterrence and in many cases also specific deterrence. [ 41 ] As the court wrote in R. v.

Reid , 2001 BCSC 1307 , the Crown is: . . . on firm ground in contending that general deterrence must, in most cases, be the paramount consideration in passing sentence for an offence committed in respect of a commercial fishery. [ 42 ] With respect to general deterrence, it continues to be imperative that any sentencing in this regulatory context works to discourage other fishers from fishing in a closed area with particular emphasis on areas closed due to contamination concerns, though I attribute great significance to the fishery in the conservation areas, particularly in Kuper Island, which is set aside for the aboriginal fishery. [ 43 ] In regard to personal deterrence, I am mindful that these offences are based fundamentally on a lack of due care and in some part, at least, on the taking of a calculated risk for profit combined with lack of due care. [ 44 ] I find it is important in this sentencing, therefore, to drive home the point that the closures and the definition of fishing, including the hauling of traps, must be closely minded for the benefit of all.

As such, I cannot accept, even assuming for the sake of argument that the defendant must be sentenced as a first time offender, that the appropriate disposition for these offences is a conditional discharge. Whatever impact this drawn out litigation may have had on the defendant and whatever lessons may have been learned as a result, such a sentence would do little to discourage others.

In fact, I suspect it could have the opposite effect. [ 45 ] I accept that in this instance, it is appropriate to impose a fine for the various offences and the question remains in what amount. [ 46 ] In considering this, I have considered the possibility of either aggravating or mitigating factors. I see no mitigating factors, but nor do I find the defendant's lack of care to be an aggravating factor. It is, rather, the basis on which the defendant has been convicted. [ 47 ] This brings me to consider the range of sentencing before me.

I accept that a number of the cases relied on by the Crown in this sentencing hearing do involve offenders with a record of one or more fisheries offences so that personal deterrence was a significant factor in those sentences. Still, I see a place here for a sentence that sends a message of specific deterrence, particularly given the defendant's admitted practice of fishing as close to the line as possible.

While I accept that in and of itself it is not illegal, as I have said in my reasons for acquittal in the first instance, the law, particularly as produced at this sentencing hearing, states clearly that this in fact gives rise to a very particular duty of care. [ 48 ] One of the cases relied on by the Crown concerns fishers fishing well inside contamination zones.

These cases justifiably attract significant sentences, as I have noted. [ 49 ] I have found as a fact at trial that Kevin McKinnell had not set the defendant's traps inside either the Stuart Channel dioxin closure or the Kuper Island conservation closure. Still, sentences in fisheries cases must ensure and support both specific and general compliance with fisheries regulations for the benefit of all. [ 50 ] The deliberate harvesting of seafood inside a closed area does call for a significant judicial response.

The careless act of fishing inside a closed area, even if it does not involve an actual harvest, might call for something less, but it cannot be a trifling response. [ 51 ] Two of the cases relied on by the Crown in this sentencing hearing speak to the specific facts of this case. It is, as counsel argued, unusual, in that I have accepted Mr. McKinnell’ s evidence that he did not set his traps inside the closed areas.

This and the fact that the defendant had not been convicted, at least at the time of the charge, of any fisheries offences after three generations of fishing sets this case apart from the authorities relied on by the Crown, to an extent. [ 52 ] Since the information in this matter was laid in 2012, the defendants have not to my knowledge since been charged. [ 53 ] As I noted in the last sentencing hearing, I accept also that this proceeding and McKinnell Number 1 have taken some six years to work through the courts. I expect that alone will have a deterrent effect.

[ 54 ] Still, I accept the sentencing principles in these regulatory offences do call for sentencing objectives of specific and general deterrence. As such, I find it appropriate to impose a fine that will send a message that there can be, for example, no commercial advantage to non-compliance with fisheries regulations for commercial operators.

In this regard, though I did not have specific evidence of the monies made by the defendant in regard to the specific catch days, there is evidence that the value of the catch for the vessel in issue, the Mean Streak, was $151,240.46 for the year 2012. [ 55 ] Bearing these facts in mind as well as the foregoing reasons, I impose the following sentences on Information 34381-C-2. [ 56 ] Count 1, for the offence of fishing for crab during a closed time, namely in the Stuart Channel dioxin closure, on January 6 and January 26, 2012, I impose a fine in the amount of $8,000. [ 57 ] Count 3, for the offence of fishing for crab during a closed time, namely in the Stuart Channel dioxin closure between May 1 and May 29, 2012, I impose a fine in the amount of $8,000. [ 58 ] Count 9, for the offence of fishing for crab during a closed time, namely in the Stuart Channel dioxin closure, between August 3 and September 17, 2012, I impose a fine in the amount of $8,000. [ 59 ] Count 11, for the offence of fishing for crab during a closed time, namely in the Kuper Island seasonal closure on April 24, 2012, I impose a fine in the amount of $2,000. [ 60 ] Count 13, for the offence of fishing for crab during a closed time, namely in the Kuper Island seasonal closure between or about May 8 and May 30, 2012, I impose a fine in the amount of $2,000. [ 61 ] Counts 33 and 35 charge that the defendant provided incomplete, inaccurate, or false information in its harvest log concerning the area or sub-areas fished.

At trial, I found that the defendant was not so much wrong in the way that it documented its longitude and latitude coordinates, though clearly mistakes were made. Rather, the defendant failed to correctly identify the sub-areas he indicated he was fishing in with those coordinates. [ 62 ] In this, Mr. McKinnell, the operator of the defendant's vessel at the material time, was careless. It was a long held pattern of carelessness that had largely, it seems, been ignored by DFO. Still, the defendant has been convicted on

summary conviction appeal on these two counts. Bearing in mind that this was a function of carelessness rather than an attempt to deceive, but also bearing in mind the critical role proper recordkeeping plays in the regulation of our fishery, it is, I find, important to impose a sentence for these two offences that also fits the sentencing objectives of specific and general deterrence. [ 63 ] The Crown seeks, as I have noted, a fine in the amount of $3,000 for each offence. The defendant submits that the fine should be absolutely minimal, largely because of DFO's lack of enforcement on this point over many, many years. That argument was, it seems, rejected by the

summary conviction appeal judge on conviction, and I think it cannot carry weight in this sentencing. [ 64 ] Still, I must also bear in mind the sentencing principle of totality. This sentence overall will, I find, imprint on the minds of the defendants that it must take care to comply with all of the fisheries regulations and legislation, whatever the practicalities.

As such, for each of these offences I find an appropriate sentence is a fine in the amount of $500 for Count 33 and $500 for Count 35. [ 65 ] Again, as in the last sentencing, if the defendants need time to pay, they can speak to that now. [ 66 ] GARY MCKINNELL: No, we don't need time. [ 67 ] THE COURT: All right, thank you very much. [ 68 ] GARY MCKINNELL: Thank you. (REASONS CONCLUDED)