Her Majesty the Queen - v. -, 2011 SKPC 168

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 168 Date: November 15, 2011 Information: 24164569 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gerald Campeau Appearing: Inez Cardinal, Q.C. For the Crown Chris Lafontaine, Court Worker as Agent For the Defendant SENTENCING DECISION B. MORGAN, J INTRODUCTION: [1] By written decision dated July 28, 2011 (R. v. Larry Lee, Robert Campeau, Larry Sens and Gerald Campeau, 2011 SKPC 2, 2011 SKPC 002), I found Mr.

Gerald Campeau guilty of three counts under The Fisheries Act (Saskatchewan) and/or theRegulations pertaining to that Act. Matters respecting the other individuals referred to in that case have been concluded, leaving only thesentencing of Mr. Campeau to be dealt with in this decision.

[ 2 ] Without repeating all of the facts set out in the prior decision, I found Mr. Campeau guilty after trial with respect to two different incidents arising out of an undercover investigation being conducted by officers of Saskatchewan Environment Resource Management (SERM). Those officers had information that Mr. Lee and Mr. Sens were using Indians to take certain sized fish from Tobin Lake. Mr. Campeau was not a target of the investigation into the activities of Mr. Sens and Mr. Lee, but came to the attention of the officers as a result of that investigation.

I will review the facts respecting the conviction of Mr. Campeau by way of a brief background. [ 3 ] Count 5 on the Information dealt with the events of March 19, 2009. On that date, I found that Gerald Campeau, who is a status Indian, claimed ownership of a “slot sized” fish which he had not caught, and removed it from Tobin Lake. A slot sized fish is a fish that is between 75 and 115 centimetres.

That size fish is not to be caught and kept by a non-Aboriginal person, as these fish are in the height of their reproductive stage, and the idea is to have these fish grow through the slot size, both so they can restock the lake themselves and so they will ultimately (hopefully) grow to a trophy size. The prohibition against keeping a slot sized fish does not apply to an Indian, who has the right to fish for subsistence. The conclusion I reached at trial was that Mr.

Campeau knew that the fish that he removed, and that he was claiming ownership of, was a slot sized fish, and was acquired in contravention of the Act or Regulations . I therefore found him guilty of count 5 of the Information which read: Did on or about the 19 th day of March A.D. 2009, near Carrot River, Saskatchewan, possess fish that he knew or ought to have known were taken or obtained contrary to the provisions of the Act or these Regulations and thereby committed an offence contrary to section 91(1)(

a) of The Saskatchewan Fisheries Regulations , Reg. 1, made pursuant to The Fisheries Act (Saskatchewan), 1994

Chapter F-16.1 as amended. [ 4 ] On March 1, 2010, the SERM Officers, continuing their investigation, themselves caught a fish that was within the slot size. Based on an offer that had been made the year before by Mr. Lee to one of the undercover officers that Mr. Lee could arrange for removal of a slot sized fish, the undercover officer went to the fishing shack where a number of gentlemen were sitting, Mr. Campeau among them, and asked if they could assist in getting that fish off the lake. I found that Mr. Campeau replied “sure, no problem”, that the fish found its way into the back of Mr.

Larry Lee’s truck, and that Mr. Campeau and Mr. Lee drove that truck to a residence at which the undercover officer retrieved that fish. I therefore found Mr. Campeau guilty of two offences, as follows: Count 6 - did on or about March 1, 2010, near Carrot River, Saskatchewan, aid, abet, counsel or procure the contravention of a provision of this Act and thereby committed an offence contrary to

section 30 of The Fisheries Act (Saskatchewan), 1994

Chapter F-16.1 as amended. Count 7 - did on or about the 1 st day of March A.D. 2010, near Carrot River, Saskatchewan, possess fish that he knew or ought to have known were taken or obtained contrary to the provisions of the Act or these Regulations and thereby committed an offence contrary to section 91(1)(

a) of The Saskatchewan Fisheries Regulations , Reg. 1, made pursuant to The Fisheries Act (Saskatchewan), 1994

Chapter F-16.1 as amended. POSITION OF THE PARTIES: [ 5 ] In

summary, Ms. Cardinal argues that the slot size fish category was created to protect resources, and was never intended to have any impact on Indians, who have the right to take those fish for subsistence. She argues that Mr. Campeau, by assisting a non- Aboriginal in taking the fish off the lake, “strikes at the heart of effective management” of that resource. She argues that Mr. Campeau has priority to those fish, and that he abused his right.

She argues that these offences are difficult to detect, as evidenced by the fact that there was a significantly complex covert operation put in place to apprehend wrongdoers. She argues it is an aggravating factor that Mr. Campeau in effect took one fish in 2009, and another in 2010, and she asks for significant fines as well as a period of probation as well as a revocation of Mr. Campeau’s licence. On this latter point, it is noted that revocation of his licence would not affect his right to fish to feed himself and his family; rather, it would impact on any fishing derbies he might participate in. Ms.

Cardinal suggests fines and surcharges in the total amount of $11,900.00. [ 6 ] Ms. Cardinal relies on three separate cases, as follows: R. v. Couillonneur , 2002 SKPC 60 , 225 Sask. R. 44

R. v. Smallboy , 2003 ABPC 217 , sentence upheld at 2005 ABQB 89 , [2005] 2 CNLR 347, 373 A.R. 187 R. v. Cardinal , 2009 ABPC 296 , period of incarceration reduced in Court of Appeal decision 2010 CarswellAlta 2117, 2010 ABQB 673 , 37 Alta. L.R. (5 th ) 232, [2011] 5 W.W.R. 699 [ 7 ] Ms. Cardinal is not seeking incarceration, hence the authority she relies on from the Cardinal case is based on the reasoning of the sentencing judge as to the severity of the offence. [ 8 ] Mr. Lafontaine, on behalf of Mr. Campeau, argues that the “sting” operation actually targeted Mr. Lee and Mr. Sens, and that Mr.

Campeau merely got caught up with this. He argues it was, in the final analysis, only two fish that were taken, and that Mr. Campeau has no prior record, and that he misunderstood his obligations. He argues that Mr. Campeau fishes for food so he can provide for his family, that he is remorseful, and that he has a traditional lifestyle in which he lives off the land, traps, hunts, gathers, and of course fishes. He is 66 years old, and his only income is his Old Age Security. He argues that Mr. Campeau has little financial means to pay a fine, and that he took the first fish to eat it himself.

As for the fish from 2010, Mr. Lafontaine argues that Mr. Campeau had minimal involvement, and that his minimal role should be reflected in his sentence. Mr. Lafontaine argues that an appropriate disposition would be to order some community service hours, so that Mr. Campeau can explain to his community the error of his ways, and argues that in the alternative the fines should be minimum. He argues there is no need for probation, as Mr. Campeau was somewhat confused as to his rights and obligations, and that all in all Mr. Gerald Campeau was essentially a hapless victim caught up with these matters.

ANALYSIS : [ 9 ] Saskatchewan has been blessed with a plentitude of lakes, mostly in the north, all of which allow for a healthy and vibrant fishing industry. In some of the larger northern lakes, commercial fisheries allow for communities to support themselves from that enterprise.

As the evidence at trial has established, a successful sport fishing industry has developed at Tobin Lake, which brings in large numbers of tourists, with a corresponding benefit to the community at large in tourist dollars. [ 10 ] Statutes such as the provincial Fisheries Act , and the provincial Wildlife Act , are specifically designed to manage the abundance of natural resources Saskatchewan has, and to set fines for those who choose to disobey the provisions of those Acts or Regulations . The Fisheries Act is among those Acts referred to as a public welfare statute. In R. v.

Idanall Korner Ranch Ltd. , 2006 SKQB 274 , Rothery J. of our Court of Queen’s Bench set out the principles that should guide the Court in sentencing individuals who violate such Acts. She noted that the principle of deterrence is a critical sentencing factor, and that the amount of the fines must meet that requirement. She further noted that any fine should not be seen as a licence fee to commit the illegal activity, noting the fines must be, without being unduly harsh, “sufficiently substantial” to send a message to other individuals who might be tempted to break the law.

She went on to say that the deterrence aspect of the sentence is not confined to the usual specific and general deterrence arguments, but has to go beyond that to emphasize the community disapproval of the act done by the wrongdoer. [ 11 ] With respect to the cases cited by learned Crown counsel, I note that in the Couillonneur decision the defendant had a large scale and illegal commercial enterprise going, which included setting nets in a sanctuary for spawning fish, an enterprise he had been involved with for well beyond the five month period dealt with in his charges.

He sold a total of 642 pounds of fish to an undercover officer, receiving $860.00 for his efforts, bragging that his activities netted his family $20,000.00 a year. My colleague Judge Nightingale noted that the fines should be more than a mere “licencing fee”, and noted that the acts of Mr. Couillonneur jeopardized the fishery operation on Canoe Lake, and that his offending behaviour insulted and dishonoured “the mutual and scrupulous care which everyone else takes about the Canoe Lake fisheries”. He noted that Mr. Couillonneur’s offending behaviour was serious, and should result in serious sanctions.

He also noted, however, that “in imposing a financial penalty I must consider Mr. Couillonneur’s ability to pay or to perform the number of hours of work required under the Fine Option Program, and must not pass a sentence beyond reason”. He also took into account the fact, in setting the fines, that he was going to place Mr. Couillonneur on probation, and fined him, including surcharges, $16,100.00. [ 12 ] In the Cardinal case from the Court of Appeal, I note that the illegal activity Mr. Cardinal was undertaking went on for a period of 18 months, and totalled 509 fish.

The Provincial Court Judge in that case found very few mitigating factors, and sentenced Mr. Cardinal to a period of incarceration. [ 13 ] In Smallboy , the Alberta Provincial Court was dealing with an Indian who illegally sold bighorn sheep horns to an undercover officer for $1,200.00, and was fined $6,000.00 on a joint submission. However, there was evidence presented that the sheep herd from which the horns had come was very limited in size, and that the “number of rams in that herd which would be legal for a licenced hunter

had diminished significantly”, the sentencing judge concluding that “illegal Aboriginal hunting has contributed to this situation”. In my view, this case is of limited use. [ 14 ] Each of Cardinal and Couillonneur , in my view, are distinguishable in that each of them dealt with a much more sophisticated and large scale operation than the one at hand. Further, the offenders were the ringleaders, as opposed to being minor players, as I find Mr. Campeau to have been.

Those factors, in my view, had a significant impact on the quantum of the fines imposed. [ 15 ] In this case, I find it an aggravating circumstance that Mr. Campeau participated twice in his illegal conduct. Although in each case he was only dealing with one fish, one of which Mr. Lafontaine argues that Mr. Campeau says he took to feed his family, his conduct strikes me as demonstrating a complete disregard for the legislation. To the extent he relies somewhat on the argument that he wasn’t aware of the prohibition, the short answer to that is that this does not afford him a defence.

Whereas I am satisfied he played a somewhat minor role in this, and his conduct seemed to be undertaken without much thought for the consequences, I am satisfied that he was actively participating in these particular offences. [ 16 ] In mitigation, however, I do take into account the fact that Mr. Campeau is 66 years old, and has no prior record. I would certainly not describe him as the ringleader.

I also take into account that, with his lifestyle and personal financial situation, he is not in a position to pay a fine that is unduly harsh, and whereas he could of course avail himself of the Fine Option Program in lieu of actually paying the fine, the hours he works would be directly attributable to the amount of the fine. As his income in comprised of Old Age Security payments, fines in the amount being sought by the Crown would be in excess of his annual income, which in my view would surely fit any

interpretation of what is “unduly harsh” in these circumstances. I agree as well with Judge Nightingale’s comment in Couillonneur , at paragraph 25 , that “the size of the fines ought to be reduced somewhat to reflect the punishment occasioned by the probation order”. [ 17 ] Finally, I have to take into account the fines levied against each of Mr. Sens and Mr. Lee, who were, after all, the targets of the investigation. Mr.

Sens, who pled guilty to one count of taking and retaining more fish than he was allowed to on March 19, 2009, received a fine of $1,000.00 with a surcharge of $400.00, for a total of $1,400.00, as well as a two year prohibition on fishing. Mr.

Lee, who pled guilty to count 6, received a fine of $2,000.00 with an $800.00 surcharge, for a total of $2,800.00, with a three year prohibition from him obtaining a fishing licence, and a one year probation order. [ 18 ] The total fines for all the counts must be “proportionate to the gravity of the offence and the degree of responsibility of the offender” as required by s. 718.1 of the Criminal Code . [ 19 ] I am therefore imposing the following sentence on Mr.

Campeau: Count 5 - a fine of $600.00 plus a victim surcharge of $240.00, for a total of $840.00; Count 6 - a fine of $500.00 plus a surcharge of $80.00, for a total of $580.00; Count 7 - a fine of $800.00 plus a surcharge of $320.00, for a total of $1,120.00. Mr. Campeau shall have until November 30, 2012, to pay the fines and surcharges of $2,540.00. [ 20 ] Pursuant to s. 29(2)(

b) of the Act , Mr. Campeau’s licence to fish is hereby revoked and he is prohibited from applying for or obtaining a licence for a period of four years from today’s date. [ 21 ] Pursuant to s. 45 of The Correctional Services Act , I place Mr. Campeau on probation for a period of two years, on the following terms and conditions: 1) Keep the peace and be of good behaviour.

2) Appear before the Court when required to do so by the Court. 3) Within two working days, advise the Saskatchewan Environment Resource Management office at Greenwater Provincial Park, Saskatchewan, of his current address, and thereafter to advise that same office in advance of any changes in his address. 4) On any occasion when he is fishing with another individual or individuals, advise that same office, no less than 24 hours prior to angling or setting a net or nets in any water body in Saskatchewan of: (

a) the location or locations of the angling and/or net or nets; (

b) the period of time in which he intends to fish; and (

c) the name and address of anyone who is fishing with him. 5) Report to the same office within 24 hours of each successful angling occasion, the number of fish caught and the weight thereof. B. Morgan, J