R. v. Harris, 2023 BCPC 67

Citation: R. v. Harris 2023 BCPC 67 Date: 20230321 File No: 42829-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JAMIE RAE ANNE HARRIS DALE GORDON CROCKER JACK ROBERT CHARLIE ROY CEDRIC ROBINSON ORAL REASONS FOR JUDGMENT (RE ACCUSED HARRIS) OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: T.I. McFadgen Counsel for the Accused Harris: S.W. Sheets Place of Hearing: Duncan , B.C. Date of Hearing: March 21, 2023 Date of Judgment: March 21, 2023

Introduction [ 1 ] THE COURT: Jamie Rae Anne Harris is before the Court. Ms. Harris has entered a guilty plea with respect to Count 2 on Information 42829-1. The charge against her is under

section 78 (

a) of the Fisheries Act, RSC 1985, c. F-14 as amended, arising specifically from an offence under s. 63 of the Pacific Fishery Regulations , 1993. The essence of the charge is that on or about June 14, 2018, she did fish for shellfish during a closed time at or near Duck Bay on Salt Spring Island, which is located in subarea 17-9 as defined in the Pacific Fishery Management Area Regulations .

Other individuals named in the two count Information include: Dale Gordon Crocker, Jack Robert Charlie, and Roy Cedric Robinson. [ 2 ] The task of this Court is to determine a fit sentence with respect to the Count 2 offence for Ms. Harris, a young Indigenous woman. Circumstances [ 3 ] This matter has taken a considerable period of time in order to come before the Court. It has a somewhat unique set of circumstances. Ms. Harris appeared before me and entered a guilty plea on August 24, 2021.

She subsequently made an application which came before me on October 14, 2022, at which time, she sought to withdraw her guilty plea. I dismissed that application for the reasons set out in the decision, cited as R. v. Harris , [2022] B.C.J. No. 2196 ; 2022 BCPC 250 . [ 4 ] It is notable that between the time that the original guilty plea was entered and the hearing and dismissal of her guilty plea withdrawal application, Ms. Harris appeared in the Duncan First Nations Court.

The matter has now come back before me for sentencing. [ 5 ] In the meantime, as I understand it, some of the other co-accused entered guilty pleas on Count 1 of that Information, specifically for offences of fishing littleneck clams, in the same Duck Bay area, being a prohibited area under a Contaminated Fisheries Prohibition Order , and without holding or being named in a licence issued under section 4(1) of the Management of Contaminated Fisheries Regulations , thereby committing an offence contrary to the

section 78 (

a) of the Fisheries Act . Those matters were dealt with separately, at least by Mr. Crocker and Mr. Charlie, in Duncan First Nations Court. Ms. Harris has chosen to have her matter resolved in this Court and not go through the First Nations Court process. [ 6 ] The circumstances surrounding the offence have been recited by Crown. It is noteworthy that there is not total agreement by defence regarding some of those circumstances.

However, I do accept that there are enough commonly accepted circumstances presented to this Court, which can be relied upon for the purposes of this sentencing hearing. [ 7 ] As I understand it, there is no disagreement or contest that there were two Department of Fisheries and Oceans (“DFO”) closures in effect in the area commonly known as Duck Bay, which I understand to be a small area located northwest of Vesuvius Bay on the western side of Salt Spring Island. [ 8 ] The two closures were made pursuant to various DFO Fisheries orders and regulations in effect in the Duck Bay area.

One was described as a sanitary closure, which as I understand from Crown’s submissions, has been in force since 1978. At the time of the Count 2 offence on June 15, 2018, there was also in force what is referred to as a biotoxin closure. Again, based upon Crown’s submissions, I understand that biotoxin closures occur as a result of testing that takes place, from time to time, and which discovers the existence of biotoxins.

This particular biotoxin closure was imposed by DFO sometime immediately before the offences occurred. [ 9 ] The circumstances are also notable in so far as two Fisheries Officers, both in plain clothing, had initially observed four people disembarking from a boat in the Duck Bay area. That resulted in a call for uniformed Fisheries Officers to attend; the uniformed Fisheries Officers arrived at approximately 2:40 p.m., being approximately two hours after the original sighting and the 12:45 p.m. report made by the plain-clothes officers.

Upon their arrival, the uniformed Fisheries Officers made observations of the four individuals who were then in the process of harvesting shellfish in the prohibited area. Those observations continued for several hours. [ 10 ] Upon being confronted by the Fisheries Officer, the co-accused, Dale Gordon Crocker, is reported to have said that the purpose for the harvesting was to use the shellfish for reseeding a beach located on Valdes Island, adjacent to reserve lands. As I understand it, that assertion was accepted at the time of Mr. Crocker's sentencing on his matter.

It seems to be common ground that there was no indication that the harvest taking place on the 15th of June, 2018, was for the purposes of gathering clams or other shellfish for food consumption or for food distribution. [ 11 ] The circumstances that are unique to Ms. Harris is that she is a member of the Stz'uminus First Nation, sometimes known as the Chemainus First Nation or the Chemainus Band. At the request of her father, Ray Harris, a very senior and prominent member of the Stz'uminus First Nation, Ms.

Harris had attended at Duck Bay on or about June 15, 2018, for the purposes of obtaining shellfish, not for human consumption, but rather for cultural purposes such as burning and other ceremonial purposes. [ 12 ] Ms. Harris is also a prominent and active member of her First Nation’s community. Her father is highly involved with and performs significant cultural roles within the Stz'uminus First Nation, including being a speaker in the longhouse. Ms. Harris, herself, has been a dancer in the longhouse for several years.

As I understand her background, she has been very much culturally involved in her community especially since about 2010. She accomplishes this notwithstanding that she has four children under the age of 12, with a fifth child being expected in the fall of this year. [ 13 ] The circumstances as detailed by Crown, which I understand are not disputed, are that the Fisheries Officers ordered that the 29 sacks of clams which had been removed from the Duck Bay beach were to be returned by the harvesters to that particular beach.

Therefore, the re-seeding of the beach, fronting reserve lands on Valdes Island, did not occur. Similarly, as I understand it, Ms. Harris did not procure any shellfish for ceremonial purposes.

[14] Subsequent to that, the charges were laid on January 17, 2020, being a significant period of time after the offences had occurred.A Summons to a Person Charged with an Offence was issued to Ms. Harris on January 20, 2020, returnable in Court on February 4,2020. [15] The matters involving Mr. Crocker and Mr. Charlie came before the Duncan First Nations Court. At that time, Mr. Scott Sheets,who represents Ms. Harris in these proceedings, was in a professional position to and was acting for Dale Gordon Crocker. Mr. Crockerreceived a suspended sentence with a period of probation for some 12 months.

The terms of his suspended sentence included arequirement contained within condition number 5, that when he was harvesting bivalve shellfish, he must first check for closures in thesubarea where he planned to harvest, print or screenshot a confirmation that the subarea was open and then must carry this confirmationwith him, which could be in an electronic format, while he was harvesting. Condition 6 prohibited him from harvesting shellfish inclosed areas.

Condition 7 was a requirement that 24 hours in advance of harvesting, he was to notify a particularly named FisheriesOfficer by email about an intention to complete such harvesting and report the location and the subarea where the harvesting was to takeplace. Condition 8 was a requirement to complete 150 hours of community work. Condition number 9 was a requirement to view a videowhich was developed by the Snuneymuxw First Nation (i.e. the Nanaimo First Nation) in conjunction with the DFO, the Englishtranslation of it being Land of Shells or A Place with Many Shells.

It focuses in part on the serious health risks of eating contaminatedshellfish. [16] The other co-accused who had entered a guilty plea on Count 1 was Jack Robert Charlie. Mr. Charlie was granted a 12 monthconditional discharge. His terms and conditions included condition 5, a requirement to complete 75 hours of community work under thedirection of his probation officer, which may include work service hours which involved cultural contributions; and then condition 6being a requirement that he was also to view a video about contaminated shellfish which I take to be the same one that Mr. Crocker wasordered to view.

Sentencing Positions Crown’s Position [17] In this matter, Crown seeks the imposition of a suspended sentence on Ms. Harris, which is a sentence available under s. 79(3)(1)(

a) of the Fisheries Act. Crown further seeks a probation order made under the Fisheries Act rather than the Criminal Code. The terms ofthe probation order being sought by Crown is for a duration of some 12 months containing: reporting conditions, 50 hours of communitywork service to be completed within the first 10 months, and a requirement to watch the video previously referenced as the Land ofShells, within the first three months of the probation order. Defence’s Position [18] Defence seeks an absolute discharge for Ms. Harris. That is based upon the circumstances that surround this matter and the factthat Ms.

Harris is a young person with no previous convictions under the Fisheries Act nor does she have any criminal record. Case Authorities [19] Crown has referred this Court to two of my own earlier fisheries decisions: 1. R. v. Johnnie et al, 2016 BCPC 96; and 2. R. v. Canute, 2015 BCPC 50. [20] I will note that the decision of R. v. Johnnie et. al dealt with five offenders who were conducting illegal shell fish harvests in theNanaimo Harbour.

The five offenders, all members of the Snuneymuxw First Nation, were charged individually or as co-accused insome informations but were then sentenced together since most of the offending behaviour was the same but occurred at different timesand not necessarily while they were all together. As one can imagine with five offenders, all with different circumstances, there were arange of sentences imposed. Essentially, in R. v. Johnnie et al, Crown stressed deterrence and strenuously argued against conditionaldischarges and suspended sentences and sought some custodial sentences.

At the end of the day, a series of sentences includingsignificant periods of community work, substantial fines, and multiple suspended sentences were imposed. [21] The decision in R. v. Johnnie et al contains a fairly comprehensive review of a number of case authorities which were presentedto the Court at the sentencing in that matter. Those case authorities, in my view, are still of assistance to this Court in arriving at a fitsentence for Ms. Harris and formulating the basis for that fit sentence. [22] The second decision that I have referenced is R. v. Canute. Mr.

Canute was both charged and sentenced, by way of a jointsubmission, separately from the multiple accused in the R. v. Johnnie matter. Mr. Canute was sentenced to a fine in the amount of $1,000with time to pay and with a probation order which contained a requirement that he perform 100 hours of community service within thefirst 10 months of the order. Analysis The Nature of a Suspended Sentence [23] It is important to understand that there are significant differences resulting from imposition of a suspended sentence rather than aconditional discharge. As previously noted,

Section 79.3(1) of the Fisheries Act permits the imposition of a suspended sentence pursuantto section 731(1)(

a) of the Criminal Code. In addition to any probation order it makes, the Court may make an order directing the personto comply with prohibitions, directions, or requirements that are mentioned in s. 79.2 of the Fisheries Act. [24] It is also useful to instruct myself that suspended sentences and the nature of them have been canvassed in the British ColumbiaCourt of Appeal decision in R. v. Voong, 2015 BCCA 285 , [2015] B.C.J. No. 1335; 2015 BCCA 285. Voong sets out the

requirements for a suspended sentence which include no minimum sentence under the Criminal Code and the requirement to imposemandatory conditions and the ability to impose other reasonable conditions commensurate with the goals of sentencing. [25] It is noted that suspended sentences have a particular role that was identified by Clayton Ruby in Sentencing, 8th Edition, atpages 434 to 436. [“Ruby”] In the Ruby it states that: A suspended sentence and probation are especially useful in cases that do not require a period of incarceration for deterrence ordenunciation. [26] The learned author further notes that the imposition of a suspended sentence is not confined to offences that do not requiredeterrence.

The suggestion is made that where a suspended sentence and probation are imposed, general deterrence by way of a period ofimprisonment remains a possibility if the offender chooses to avoid the controls selected by the Court for his rehabilitation. Thus, anoffender who "chooses to avoid the controls," by breaching may very well end up in prison (see Ruby, pages 434 and 435, paragraph10.5). [27] I note that cases such as R. v. Hudson, (ON CA), [1968] 2 CCC 43 (Ont. C.A.), at paragraph 11, have opinedthat a suspended sentence can conceivably be more onerous than a sentence involving immediate imprisonment.

Such might be the caseif an offender were to breach in the last month of the probationary period and, thus, be exposed to serve a full term appropriate for theoffence of which he was convicted, notwithstanding he had virtually completed the terms of his probation satisfactorily. The Nature and Requirements of a Discharge in Sentencing [28] The other thing that I must instruct myself is the nature of discharges. In this particular matter, defence is seeking an absolutedischarge.

However, both Crown and defence have indicated that a conditional discharge is appropriate for consideration by this Court inthis case. [29] Based upon the submissions that have been presented to this Court, I must instruct myself that the principles which underlieabsolute and conditional discharges set out in

section 730 of the Criminal Code. The requirements for a discharge are set out in theleading authority of R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559. It outlines the test that to grant a discharge, theCourt must first consider whether it is in the best interests of the accused that they should be discharged either absolutely orconditionally. If that test is met, then the Court must consider the second leg of the test and conclude that a discharge in not contrary tothe public interest.

In this particular case, as indicated above, both Crown and defence agree that a conditional discharge should beconsidered by this Court. However, that said, obviously Crown argues that the appropriate fit sentence should be a suspended sentencewhile defence is seeks an absolute discharge. Sentencing Goals in Fisheries Offences [30] An important considerations in this case are the goals of sentencing in offences of this nature. Crown has submitted, and I accept,that offences under the Fisheries Act and its Regulation create public welfare offences. In that regard reference has been made to thedecision of R. v.

Cotton Felts, (ON CA), [1982] O.J. No. 178 (Ont. C.A.), in support of the proposition that publicwelfare offences range widely from safety and consumer protection to ecological conservation; these type of offences are accepted asessential in the public interest to ensure standards of conduct, performance, and reliability to make life tolerable for all (see paragraph19). [31] Accordingly, Crown relies on the Cotton Felts case to support the further proposition that deterrence is at the heart of publicwelfare offences and the sentences that arise from them.

Specifically, Crown notes that in Cotton Felts at paragraph 23, says that in thesetype of offences, deterrence is not to be taken only in its usual negative connotation of achieving compliance by threat of punishment but,rather should be taken as deterrence in a more positive aspect. Cotton Felts observes that such context is described in R. v. Roussy,[1977] O.J. No. 1208, which was a driving offence case; Roussy, observes as follows: But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the termdeterrent in its widest sense.

A sentence by emphasizing community disapproval of

an act, and branding it as reprehensible has a moralor educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regardconduct as reprehensible will not likely commit such

an act. [32] In Cotton Felts at paragraph 23, the Court, again referencing Roussy, concludes: This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of oursociety for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare ofthe public. Crown’s Impact Statements [33] As part of this sentencing process I must also take into account both Exhibit 1 and Exhibit 2 which are impact statements (the“Impact Statements”) that have been filed by Crown.

Exhibit Number 1, is entitled, "Impact Statement Intertidal Bivalve IllegalHarvest." It was prepared by Elysha Gordon, C.S.P. Coordinator, dated May 29, 2017. Exhibit Number 2 is entitled: Expert Statement onShellfish and Marine Food Related Illnesses dated December 19, 2018. It was prepared by Dr. Paul Hasselback, MD, MSc, FRCPC, whois described as a “Public Health and Preventative Medicine Specialist”.

At the time of preparing Exhibit 2, he was a Medical HealthOfficer in the Central Vancouver Island area. [34] Both of these Impact Statements are useful in understanding the seriousness of a failure to abide by the appropriate restrictionsimposed by the DOF. A number of disease and public health and safety concerns as well as the economic concerns are detailed in theseImpact Statements. I find the provisions contained on page 3 of 7 in Dr. Hasselback's Impact Statement, being Exhibit Number 2, underthe heading of “First Nations Social and Cultural Health Impact” to be particularly useful.

It specifically notes the fact that shellfish have

been cultivated, harvested, distributed and eaten by First Nations People in BC for generations upon generations and form a significantpart of the traditional cultural practices of the community. These traditional cultural practices predate European contact on the coast and,of course, well before “the legislation and monitoring systems that have been put in place to help lessen human health risk”.

Thesetraditional cultural practices enabled “First Nations to gain physical, emotional, mental and spiritual benefits from this healthy andreadily available marine food source.” However, these traditional cultural practices did not have to contend with existing problems suchas dense human population growth on the coast, resulting in such things as sewage contamination, pressures on the ocean environment,rising temperatures from climate change, and the like. An important conclusion reached by Dr.

Hasselback is that: “these changes havecontributed to an increased likelihood of shellfish and marine food related illness for First Nations peoples, which are even greater whenself harvesting happens in closed areas or in areas that are not monitored.” Gladue Factors and Considerations [35] In my analysis to conclude what is a fit sentence, I must also instruct myself that given the Indigenous background of Ms. Harris,I must take into account the directions of the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, inconsidering a fit sentencing.

I may take judicial notice of the broad systemic and background factors affecting aboriginal people, and ofthe priority given in aboriginal cultures to a restorative approach to sentencing. Thus in this case, I must balance this Gladue approachwith the Cotton Felts deterrence approach to ensure that the sentence is appropriate for this particular offender. [36] There is no Pre-Sentence Report nor Gladue Report before me, which would have been helpful. However, in sentencingsubmissions, I heard directly from Ms. Harris' father, Ray Harris.

He has a long history as a licenced commercial fisher and shell fishharvester. He now does mostly salmon fishing to support his extended family. He has spent his entire working career dealing withsalmon and shell fish harvesting. He explained some of the importance of and the cultural significances of marine harvesting to theStz'uminus First Nation. He noted that his daughter has not engaged in any form of traditional shell fish harvesting since the eventsoccurred that have given rise to her charges presently before the Court. Conclusions [37] Both based on the submissions made on behalf of Mr.

Crocker at his sentencing as well as the submissions made on behalf ofMs. Harris, I accept that there was not an intention to permit the harvested clams to find their way into the food system. [38] However, I have to take that into account the concerns expressed by Crown about the possibility of significant harm to the publicarising from the illegal harvesting and the transport of shellfish. Crown makes an important point when it says that the unauthorizedtransportation of the contaminated shellfish to another location, which may or may not be under DOF restrictions, is of a great concern.

Itis possible that an unwary person harvesting legally in an open area and believing that those shellfish were free from contamination mayfind themselves victimized with a number of the ailments and health conditions which are described in the Impact Statements. [39] I accept that in Ms. Harris' circumstances there was no intention for her portion of the harvest to be relocated to another area.Rather I accept that it was to be used for non-food, cultural purposes. Therefore, different considerations may come into play in arrivingat her sentence.

However that type of harvesting is not risk free given what is contained in the Impact Statements. [40] Ms. Harris’ offence under the Fisheries Act is a strict liability offence. Crown does not have to prove a mental element or intentto commit the offence. Ms. Harris’ existing guilty plea satisfies Crown’s obligation to prove the actus reus of the offence. Once that isestablished, there are only a limited number of statutory defences available as set out in the Fisheries Act, for example the due diligencedefence in

section 78.6. None of these specifically apply to Ms. Harris. [41] Ms. Harris committed the offence set out in Count 2 of the Information on the 15th of June, 2018. She did not become aware ofthe charges until after the Information was sworn on January 17, 2020. She has had this matter hanging over her for a considerableperiod of time before entering her guilty plea. That is a fact which I will take into consideration in determining a fit sentence. [42] The disposition of the various offences against the five offenders in the R. v. Johnnie case are significantly different than thecircumstances in this case.

In some instances, some of the offenders had prior Fisheries convictions and, in some cases, as I recall, evencriminal convictions. I have the advantage of knowing the details of the sentences imposed upon Mr. Crocker and Mr. Charlie, who arealso named in the Information along with Ms. Harris. Resulting Sentence [43] As I have indicated, Ms. Harris is a young person with no criminal record and no prior convictions under the Fisheries Act. She isactively involved in her community. She works as a youth worker for her band run school. She makes $17 per hour, but that is not full-time employment.

She has considerable support from her family. As I understand, from her father's submissions to this Court, she resideswith her extended family in a large house on the Stz’uminus First Nation Reserve. From everything I can discern from the submissionsand from the other material before me, she is considered to be a well-regarded and contributing member of that community.

In otherwords, she is a person of good character. [44] Taking into account all of the principles of sentencing and the circumstances of this case, I am of the view that the Fallofield testis met and that this matter is best dealt with by way of a conditional discharge. [45] I am going to ask Ms. Harris to stand, please. [46] Ms. Harris, I am going to be sentencing you to a conditional discharge.

If you fulfill the terms and conditions of the conditionaldischarge, then you will not have any record at all stemming from the charges against you under the Fisheries Act. [47] I fully appreciate this matter has been hanging over your head for a considerable period of time. I am taking that into account.However, I do feel that there are some basic conditions that should form part of your sentence. The conditions that I am going to imposeare that the terms of your conditional discharge which will be for a period of four months. The conditions will be as follows.

[ 48 ] Condition 1, you must keep the peace and be of good behaviour; condition 2, you must appear before the Court when required to do so by the Court; and third is you must notify the Court or the probation officer in advance of any change in name or address and promptly notify the Court or the probation officer of any change of employment or occupation. [ 49 ] The reporting condition is you must report to a probation officer at Unit 7 - 180 Central Road, Village Green Mall, Duncan, British Columbia, no later than tomorrow, which is Wednesday, March 22, 2023, by telephone at 250-746-2854 and, after that, you must report as directed by your probation officer, but no more than once per month, and I am also going to say that such reporting may be by telephone at the direction of your probation officer. [ 50 ] I am going to make a further order that you must view the video which addresses contaminations and harm caused by contaminated shellfish which was developed by Snuneymuxw First Nation in conjunction with the Department of Fisheries and Oceans, titled -- and I will spell it for Madam Clerk, It is T-t-h, apostrophe, e, apostrophe, w-u-m, [Tth’e’wum] ( Land of Shells ), and the Duncan Community Corrections Office will provide you with an opportunity to view it. [ 51 ] I am not going to impose any community work service on you.

I am conscious that you are already participating significantly in cultural activities within your community and I would fully expect that you will continue to do that. Therefore I do not consider it necessary to impose that type of condition on you. [ 52 ] So those are the conditions. There is no victim fine surcharges, I recall, under the Fisheries Act . So I am just going to ask, Ms. Harris, if you understand all those terms and conditions, do you? [ 53 ] THE ACCUSED: Yes, I do. [ 54 ] THE COURT: You understand that if you fail to follow those conditions, you could be charged with a breach?

Do you understand that? [ 55 ] THE ACCUSED: I do. [ 56 ] THE COURT: You further understand that if you were to be charged and convicted or pled guilty to a breach of those conditions, that you could lose the entire benefit of a conditional discharge. Do you understand that? [ 57 ] THE ACCUSED: Yes. [ 58 ] THE COURT: Having acknowledged on the record that she understands all of that, and given the time, I am going to waive her signature on any form of the sentencing documentation. [ 59 ] CNSL S. SHEETS: Thank you, Your Honour. [ 60 ] THE COURT: All right, and -- [ 61 ] CNSL I.

MCFADGEN: Thank you, Your Honour. [ 62 ] THE COURT: -- staying -- [ 63 ] CNSL I. MCFADGEN: I can stay Count 1 as against Ms. Harris. [ 64 ] THE COURT: So noted. Does that -- [ 65 ] THE CLERK: It does. I just need time to report by -- [ 66 ] THE COURT: Oh, I thought I -- [ 67 ] THE CLERK: I have a date, but -- [ 68 ] THE COURT: Oh, okay, well, let us make it by 3:00 p.m. tomorrow. [ 69 ] THE CLERK: Thank you. [ 70 ] THE COURT: If I did not say -- [ 71 ] THE CLERK: Thank you. [ 72 ] THE COURT: -- I meant to say in the late afternoon. [ 73 ] CNSL S.

SHEETS: I'll explain it to her, anyway. [ 74 ] THE COURT: All right. Anything further? [ 75 ] CNSL I. MCFADGEN: Thank you, Your Honour. [ 76 ] THE COURT: Okay. [ 77 ] CNSL I. MCFADGEN: No, thank you. [ 78 ] THE COURT: I thank Mr. Harris for his attendance today and I thank counsel for their helpful submissions.

(REASONS CONCLUDED)