R. v. Zhu, 2019 BCPC 388

Citation: R. v. Zhu 2019 BCPC 388 Date: 20191112 File Nos: 66053-1, 66282-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. LIANG ZHU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: S.D. Phillips Counsel for the Defendant: D. Milburn Place of Hearing: North Vancouver , B.C. Date of Hearing: April 3, 2019 Date of Judgment: November 12, 2019 [ 1 ] THE COURT : Ligang Zhu is before the Court on two Informations.

I will deal first with Information 66053 which is the first in time. [ 2 ] On that Information, he has pled guilty to a number of counts: Count 2 alleges that he was fishing for shrimp using a trap during a closed time, in contravention of s. 34(1) of the Fisheries Act ; Count 4 alleges he unlawfully caught and retained lingcod measuring less than 65 centimetres in overall length, in contravention of s. 29(1)(

d) of the B.C. Sport Fishing Regulations ; Count 6 alleges that he

caught and retained dungeness crab measuring less than 165 millimetres across the carapace, in contravention of s. 37(1)(

b) of the Act;and Count 8, that he failed to immediately record the catch of a lingcod on his licence. All of those offences occurred on June 17, 2017. Count 10 of the Information occurred July 7, 2017 and is an allegation that he set a crab trap without a float or buoy bearing his name,contrary to s. 39(2) of the B.C. Sport Fishing Regulations. [3] On Information 66282, he pled guilty that, on the July 21, 2018 he was fishing for sea cucumber other than by hand-picking ordiving, in contravention of s. 38 of the B.C. Sport Fishing Regulations. [4] The circumstances of the offences are that, on June 17, 2017 Mr.

Zhu was working as a recreational fishing guide. He wasoperating a boat, the Luna Sea, which belonged to a friend of his but which he had permission to use for those purposes. [5] He had a number of people onboard the boat on June 17 and was observed pulling up traps from the area of the glass sponge reefin Howe Sound. There were four traps on the line and a piece of one of the glass sponges was attached to one of the traps. A furtherinspection found four of eight crabs which had been caught were undersized. He was in possession of two undersized lingcod. He didnot have his current licence.

He had the licence from the year before and had not recorded the lingcod on that licence. [6] On July 7, 2017, there was a report of a fisher pulling up and dumping out crabs from a net without measuring them. On thatoccasion, he was found in possession of 18 undersized crabs. It is significant that he was operating a fishing charter at that time and wasarrested in the presence of his clients and had to refund their money. [7] Just over a year later, on July 21, 2018 the Luna Sea was noted by the fisheries officers.

They went to do an inspection andfound they were angling, but had two sea cucumbers onboard, and were advised that they had been caught by snagging them with athree-pronged, I gather, barbed hook, and so that is what gives rise to that last count. [8] Mr. Zhu has a history. Starting in 2004 and up to somewhere around August 2007, he was issued six tickets under, I presume,The Sport Fishing Regulations. In 2007, he was charged with purchasing, selling, or possessing illegally-caught fish. That was dealtwith February 28, 2008, and he received a $7,000 fine.

There was also a forfeiture order, although I am not aware what was forfeited atthat time. [9] There is a joint submission before me today for a total of $25,000 in fines and a six-and-a-half-month prohibition. Thatprohibition will expire June 1, 2020, to allow Mr. Zhu to continue to act as and earn his income as a sport fishing guide in the summer of2020. I will turn to the reasons for that in due course. [10] Crown filed Exhibit 1, which is Information about the glass sponge reefs in Howe Sound, and in the Strait of Georgia. As shedescribed it, they are an ecological treasure. They were believed to be extinct.

There are a few sponge glass reefs that have been locatedoff the coast of British Columbia and some are in Howe Sound. They are extremely delicate and extremely rare and must be protected. As a result, there is an absolute bar on any bottom fishing in the areas of glass sponge reefs. They are very effective at cleansing oceanwater and provide habitat for a number of species. [11] Mr. Zhu says that he placed his traps in an area off or away from the glass sponge reef and that, as he was pulling the traps in,due to the tide and the wind, his boat drifted over top of the closed area.

This is, of course, not a defence to the matter and does not,certainly, amount to due diligence, as indicated by the guilty plea in this matter. In my view, it might even be seen as aggravated in thatas soon as Mr. Zhu realized that he was having some kind of difficulty pulling in his traps, he should have abandoned the effort, so thathe was not dragging them across the closed area near to the glass sponge reef.

In any event, it does not bear on my decision as towhether or not to accept the joint submission in this matter. [12] The principles have been outlined for the Court by the Crown and they have relied on a number of authorities, the first being R.v. Terroco Industries Ltd., 2005 ABCA 141; R. v. Le, 2019 BCPC 116; R. v. Bullock, unreported, May 27, 2019, Prince Rupert RegistryNumber 29189 BCPC; R. v. Tang et al, unreported, June 20, 2018, Sechelt Registry Number 17427 BCPC; R. v. Daenick and 3774156Manitoba Ltd., unreported, October 17, 2012, (MB PC); R. v.

Kern, unreported, November 27, 2007, Port Alberni Registry Number40028 BCPC; and R. v. Crocker, (NL PC). [13] In light of my acceptance of the joint submission, I will deal briefly with the principles, but, in my view, Mr. Zhu bears highmoral culpability for the offences before the Court. This is particularly with respect to the damage and harm to the glass sponge reef, andalso with respect to the crab and the lingcod which were undersized. [14] Mr. Zhu, as noted, has a prior history of noncompliance with the Fisheries Act. He now says he accepts responsibility and isremorseful for his conduct.

However, in light of his past history and that he was investigated in June and July of 2017 and continued tobe in noncompliance in July of 2018, little weight should be attributed to that. As the Crown said, it rings hollow, in all thecircumstances. I have already mentioned the damage and harm to the glass sponge reef, as well as the other species. It is clear that Mr.Zhu must be specifically deterred, and of course the sentence must also address the principles of general deterrence and denunciation. [15] It is of particular note that Mr. Zhu has been making his living as a recreational fishing guide since 2006.

Since 2008 after beingticketed and charged, he did not come to the attention of any Fisheries Officers until 2017. However, he says now that he did not knowhe needed to have a current licence with him and report catch as it was caught. That is a fundamental part of any recreational fishinglicence, and for him to purport now that he did not have that knowledge would be an indication that he has failed, in a significant way, toinform himself and self-regulate in the recreational fishery. He also did not have calipers onboard for the crab and no appropriatemeasurement device for the fish.

In 2018, he, apparently, was not supervising the fishers onboard his boat, who were not familiar withthe fisheries regulations and were depending on him to ensure compliance. [16] The aggravating circumstances are that he impacted the glass sponge reef. He has had a history of ongoing offences and now thisrecent spate of offences. His motive for fishing contrary to the regulations, was profit. He did plead guilty, although on the trial date. Nevertheless, he is entitled to some mitigation in that regard.

[ 17 ] It is significant that he has a very limited ability to pay. He is the primary income earner for a family of four. His wife is employed, but, due to the market conditions, her current employment is not producing much in the way of income as a realtor. [ 18 ] Mr. Zhu is now well aware, and this record will reflect that he has been warned, in a very significant way, that further noncompliance is going to result in very significant consequences. I am, frankly, surprised that the vessel was not seized in 2018, but that is probably because, on that occasion, there were simply two sea cucumbers on board.

In the future, though, I expect Mr. Zhu will find that the vessel he is on is seized, and whether his friend gets it back is going to be up to the courts, and also that he will have a lengthy prohibition, which will mean that he no longer has an income. [ 19 ] Mr. Zhu, if you will stand. [ 20 ] Mr. Zhu, I consider the penalties that your counsel and the Crown have agreed to to be very lenient, in all the circumstances. I find your behaviour quite egregious and careless.

You appear to put your own interests above that of the environment, and that is why I find that you have such a high moral culpability. [ 21 ] You have children, Mr. Zhu. [ 22 ] THE ACCUSED: Yes. [ 23 ] THE COURT: I do not know what kind of model you think you are being for your children. Do you not want them to have the benefit of a healthy ocean when they grow up? We depend on our oceans and all of the species in them.

People who ignore the need for conservation and care in fishing are causing long-term damage, and it has to stop. [ 24 ] On Count 2 of Information 66053 there will be a $10,000 fine; on Count 4 of the same Information there will be a $3,000 fine; on Count 6, a $3,000 fine; on Count 8, a $2,000 fine; and on Count 10, a $2,000 fine. On Information 66282 on Count 2 there will be a $5,000 fine. [ 25 ] On Count 2 of Information 66053, pursuant to s. 79.2(

a) of the Fisheries Act , you are prohibited from fishing or being on a vessel at sea, save and except for a B.C. Ferry or TransLink SeaBus. That prohibition will be in effect through to and including June 1, 2020. [ 26 ] THE COURT: With respect to the fine on Count 1 on Information 66282, the time to pay the $5,000 fine is to December 20, 2019. And, on the other Information, the time to pay the fines on that matter will be to November 30, 2021. [ 27 ] THE CLERK: Order in court. (REASONS CONCLUDED)