R. v. Morshedian and Janani Date:, 2016 BCPC 80

Citation: R. v. Morshedian and Janani Date: 20160215 2016 BCPC 0080 File No: 59709-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MOHAMMADREZA MORSHEDIAN SEYEDEH SHAHRBANOO JANANI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.A. DYER Counsel for the Crown: S. Dubinsky Counsel for the Accused: No appearances Place of Hearing: North Vancouver , B.C. Date of Hearing: February 15, 2016

Date of Judgment: February 15, 2016 [1] THE COURT: On November 3, 2015, I found, following a lengthy prosecution commenced by the District of WestVancouver, that it had proven eight of 10 counts in an Information alleging various breaches of municipal bylaws against the twodefendants beyond a reasonable doubt.

One issue then remained outstanding; namely, whether or not I should enter a conviction againsteach defendant for each count, or whether some merited a judicial stay pursuant to the well-known principle in the case of R. v.Kienapple, (SCC), [1975] 1 S.C.R. 729, a judgment of our Supreme Court of Canada dealing with the rule againstmultiple convictions. [2] After hearing further submissions from both counsel on point, I reserved and in supplementary reasons given on January 22,2016, I found that this principle did not apply and registered convictions against both defendants on all eight counts.

I then heard oralsubmissions and received written submissions, in addition, from each counsel, as to what sentence would be appropriate in this case andreserved to consider the same. These are my reasons and the sentence for each defendant will follow.

The offences [3] On January 22, 2016, I convicted the two defendants of Counts 1 and 2, being breaches of ss. 2 and 24 of the District of WestVancouver Soil Removal and Deposit Regulation Bylaw No. 3786; and Count 3, being a breach of ss. 16 and 24 of the same bylaw;Count 4, being a breach of ss. 14 and 24 of the same bylaw; Count 5, being a breach of ss. 2, 21, and 22 of the District of WestVancouver Creeks Bylaw No. 3013; Count 6 being a breach of ss. 4, 21, and 22 of the same bylaw; and Counts 9 and 10, being breachesof ss. 7.2 and 11.1 of the District of West Vancouver Water Course Protection Bylaw No. 4364. [4] All three bylaws provide for a minimum fine of $5,000, and a maximum fine of $10,000 where, as here, the District proceededsummarily, and in addition that each day a violation occurred or continued was a separate offence: see ss. 21 and 22 of the ConsolidatedCreeks Bylaw, s. 11 of the Watercourse Protection Bylaw, and s. 24 of the Consolidated Soil Removal and Deposit Regulation. [5]

Section 24 of the latter regulation, by way of an example states as follows: Penalties 24. Every person who violates a provision of this bylaw, or who consents, allows or permits

an act or thing to be done in violation of aprovision of this bylaw, or who neglects or refrains from doing anything required by a provision of this bylaw, is guilty of an offence andis liable, upon

summary conviction, to a fine not exceeding $10,000 and not less than $5,000, and is guilty of a separate offence each daythat a violation continues or exists. The offenders [6] The defendants are spouses and apparently emigrated to Toronto, Ontario, initially, I believe, from Iran, and then in 2008moved to the Province of British Columbia. He was at the time qualified to work as an engineer in this province. [7] Mr.

Creighton, in his written submissions on January 22nd, said his background was working in the nuclear industry in a verytechnical position before coming to Canada and as an electrical engineer and not a structural or soils engineer, and that in January 2016,he was not formally employed, but living off the income produced from rentals of various properties the two defendants owned in WestVancouver, some four in number. My sense was that three of the four, including the subject property at 2785 Chelsea Close, WestVancouver, were rented and the defendants reside in one of the four West Vancouver residences.

All four properties were said to beheavily mortgaged. [8] I was given no documents to substantiate either the assessed value of any of the four West Vancouver residences, nor the valueof any mortgages that might be charged against them. The 2785 Chelsea Close property, hereinafter referred to as "the residence", wasacquired in the summer of 2012. It is a very sizeable piece of property. [9] Ms. Janani is a medical doctor and at the time of trial was working, I believe, at the University of British Columbia. At allmaterial times she lived with her husband, Mr.

Morshedian, and was aware of the work he described as landscaping on the property,ongoing from late January to late March 2013. Mr. Creighton said she was not working on January 22, 2016. I was really given noreason why the two professional defendants were not working at some form of gainful employment on that date, other than managingtheir four West Vancouver properties. I assume this state of affairs is therefore one of personal choice. [10] On all the evidence in this case, these two defendants, I think, can fairly be described to be well-educated, bright, and well-to-doindividuals.

I accept that English is a second language for each. I believe Farsi is their first language. Nonetheless, they have been inCanada for some years and neither required an English-Farsi interpreter at the trial before me. [11] Mr.

Morshedian can and did read the English language during the course of his testimony at trial, and as well testified thatduring the period January to March 2013, he obtained certain documents written in the English language and that he had read them. [12] He does, nonetheless, speak English with somewhat of an accent and at times I found that he was a bit difficult to understandduring the course of the trial. That said, his two eastern next-door-neighbours, Ms. Schoenauer and Dr. Casses, testified at trial andneither said that in their dealings with Mr.

Morshedian, all in the English language, they felt he had difficulty understanding them or theyhim. I will return to one of these interactions below. The facts relating to the eight bylaw breaches

The offences [ 13 ] Between January 29 and March 22, 2013, the defendants brought a substantial amount of excavated soil from a jobsite on Nelson Avenue in West Vancouver to the residence, and initially dumped it on the top flatter part of their large lot. This soil was free and trucked onto their property in large dump trucks. [ 14 ] Before this soil was deposited on their lot, the defendants had hired a 29-ton excavator and a contractor operator, a Mr. Hothi, to do certain clean-up work on their lot and in particular on the eastern side, including on the south slope area.

This work involved digging out stumps of trees the prior owner had cut down, and clearing resulting debris including, no doubt, limbs, trunks, and roots which I understand were removed from the property. This work necessarily involved moving some soil on the property, and later the trucked-on soil was moved about for grading and levelling purposes by the large excavator and its operator, both on the top, more level portion of the property, and I think, too, to some extent, at the top of the south slope. [ 15 ] The quantity of the soil trucked on was very substantial. One neighbour, a Ms.

Lafleur, who regularly observed the ongoing deliveries of soil, said she felt loads of soil were delivered most weekdays, and while she did not count the truckloads, estimated there were hundreds. A neighbour, Mrs. Schoenauer, corroborated her evidence as to the frequency of the trucking. [ 16 ] My review of all evidence on this point is set out in my November 3, 2015, reasons which I do not intend to repeat. For sentencing purposes, it is sufficient to state that a very substantial quantity of free excavated soil was brought onto the property from a site in West Vancouver on Nelson Avenue.

The evidence was that during this process, which occurred at normally a rainy time of the year in West Vancouver, a lot of rain did in fact fall, and that it was raining on and off to such an extent that on January 23, 2013, Mr. Morshedian told Ms. Schoenauer that, as he anticipated it was going to rain a lot, he was going to tarp the soil and, to some extent, he later did so in places.

The only reasonable inference one can draw from this act is that this defendant was concerned about the soil becoming impregnated with rainwater and thereafter becoming unstable. [ 17 ] By this date, January 23rd, dirt from the residence was already seeping in the rainwater under Ms. Schoenauer's fence, into her yard next door to the east. Mr. Morshedian, in a personal meeting with Ms. Schoenauer and her husband, had in early January indicated that the scope of their intended work was to build a garden.

No reference was made to grading work or that he would be bringing on a substantial number of truckloads of soil or a 29-ton excavator to move it about or do other grading or clearing work. [ 18 ] On January 25, Dr. Casses told Mr. Morshedian that he was unhappy with the scope of the work ongoing, as it was inconsistent, he felt, with his initial statement that he was building a garden. He also stated that he had concerns about a possible mudslide onto his contiguous lot or down the south slope on the defendants' lot. Mr.

Morshedian told him not to worry, he was an engineer, and that he knew what to do. [ 19 ] Thus, notwithstanding I am told a background in electrical engineering, clearly this defendant then felt confident enough to himself manage a very extensive amount of work on his lot. [ 20 ] On or about March 19 or 20, 2013, Ms. Schoenauer and Dr. Casses again spoke with Mr. Morshedian. She suggested earlier that he build a retaining wall and she felt he sloughed off this idea, stating again he was an engineer. At this time, Dr. Casses, wanting to know if what the defendants were doing was legal, asked if they had permits.

The defendant did not answer, and on Dr. Casses's pressing, said the city officials were just a bunch of bureaucrats after his money and that it was his property and he could do with it as he liked. [ 21 ] When Dr. Casses said he could not change a natural slope so as to impact neighbours or the environment, Mr. Morshedian got angry and asked Dr. Casses to leave his land. [ 22 ] Mr. Morshedian attended on several occasions in the West Vancouver municipal hall to obtain information about his landscaping work.

He talked to various individuals and on one occasion was given a brochure relating to, among other things, retaining walls, which he read and from which he drew his own conclusions as to what he could or could not do on his lot.

I found in my November 3, 2015, reasons that at no time did he fully and fairly tell any West Vancouver municipal worker and any department what the true scope of the ongoing or intended work was on his property during the above period, January to March 2013; for example, including that almost daily on non-raining days he had brought and intended to bring many dump trucks full of excavated soil onto his lot and grade it using a 29-ton excavator. [ 23 ] I also found on November 3, 2015, in my reasons, that he had a duty to be honest with the municipality, and in not being fully forthcoming with them, he materially misrepresented things to the municipality concerning the nature and the scope of his work, either ongoing or intended, on his property. [ 24 ] On March 22, 2013, certain municipal employees and others attended at the defendants' residence.

Dr. Casses was told by someone that a landslide had occurred thereon. For purposes of this sentencing, I understand that the defendants do not accept that this is an accurate statement; that is to say that a landslide occurred on their lot. [ 25 ] I do not intend to repeat further portions of my November 3, 2015, lengthy reasons and the various pieces of evidence on point which I found to be credible and which did point to this event occurring. Suffice it to say that in a letter from the defendants' own geotechnical engineer to the District on March 26, 2013, the author, a Mr.

Yam, makes reference to a slide having occurred. I have dealt with this issue at some length in my reasons of November 3rd, 2015, at paragraphs 520 to 529, and there stated my finding that the defendant Morshedian's rejection of this statement of his own expert on point was nonsense. [ 26 ] I also found that certain photos in evidence at trial showing tarp fragments mixed in with the soil on the defendants' property were consistent, in my view, with a slide having occurred: see paragraphs 517 to 519. [ 27 ] For purposes of the sentencing, I find that a mud or landslide had occurred on the residence property.

Degree of culpability of each defendant [ 28 ] Counsel for the District argues, and I agree, that comparatively speaking Mr. Morshedian is more culpable than his spouse, Ms. Janani, who, while a co-owner of the residence, really relied on her husband, an engineer, to do the landscaping work properly, "the way an engineer ought to". Clearly Mr. Morshedian seems to have made all decisions concerning the work and had all interactions with the District of West Vancouver employees.

It was these decisions that led to the trouble that occurred on and after March 22, 2013, and the resulting consequences of his various actions in breach of the eight bylaw provisions. What were the consequences of the various breaches? [ 29 ] These consequences are all referred to in my November 3, 2015, reasons in my discussion of findings on Counts 1 to 10 before the court. In

summary, I found that the defendants, in bringing soil onto their property in the quantity in which they did and in moving both it and indeed soil already on their property about with a heavy excavator, both on the top and south slope area, all without a permit, and during a rainy season, caused waters in Rodgers Creek B to become turbid: see paragraph 435. [ 30 ] This turbidity, however, was not, on the evidence, long lasting in effect. There is no evidence any fish or wildlife were injured as a result of this state of affairs. [ 31 ] As far as the seepage of mud and muddy water onto Ms.

Schoenauer's property is concerned, this was ongoing in February and into March, as late as March 20, 2013, and occurred every time it rained. [ 32 ] The weight of the soil the defendants permitted to be deposited on the eastern boundary area of their lot and that of Ms. Schoenauer caused the common boundary fence located there to buckle. As well, the mud that flowed down from the defendants' lot south slope encroached on the District's property to the south of it and endangered natural watercourses or creeks below the defendants' lot. [ 33 ] The encroachment was not merely transitory nor trifling.

The watercourses or creeks affected were all connected, beginning with a small channel or ditch which collected water when it rained, connecting to Rodgers Creek Tributary B, which itself connected to the main stem of Rodgers Creek flowing down the mountain in West Vancouver. [ 34 ] Silt and other material which originated in this mud made its way into the above watercourses and/or creeks, but did not fully obstruct or impede the flow of any, but damaged it.

This material fouled the flow of water in these various bodies of water. [ 35 ] Neither defendant was given permission to deposit soil on the property or in the bed or channel of any creek in the Municipality of West Vancouver. The work that the defendants did, and in particular the depositing of very substantial amounts of excavated soil on their property, required them to have a permit and they did not. As well, the nature of the work required them to have a sediment control plan and they did not. [ 36 ] This is not a case where, for some reason, the defendants had a permit but the wrong one.

Mitigating factors [ 37 ] Ms. Dubinsky for the District says there are no mitigating factors. [ 38 ] Mr. Creighton advanced quite a number of points on behalf of the defendants, some of which seemed to question findings I had made as the trial judge in my reasons, although I am certain this was unintended, and some of which sought to place the actions of the accused in a more positive context. For example, Mr. Morshedian had gone to the West Vancouver City Hall and tried to ascertain what he needed to comply with the bylaws.

I have dealt with this point fully in my November 3, 2015, reasons. [ 39 ] He did not expressly provide any mitigating factors labelling them as such in his oral or written submission. Aggravating factors [ 40 ] Ms. Dubinsky says there are quite a number of aggravating factors in this case as follows: 1. Mr. Morshedian engaged in material non-disclosure. In my November 3, 2015, reasons I said this in part on point, and I quote: [502] I wish to emphasize a number of points referred to by Ms. Giltrow.

I completely agree with her submission that the defendant did not tell the various District representatives he dealt with at any material time, including in his single permit application, the true nature and scope of the work he anticipated doing on the property or was doing, including, without limiting the generality of this statement, the fact that he was intending to deposit or had deposited any soil on his property, when I find at all material times he knew that he had or intended to do so. [503] His failure to so advise the District of this single fact, I find, was tantamount to a material non-disclosure or misrepresentation.

This was an important fact to the District, which he avoided giving them on at least three separate occasions. [504] I also find that he misrepresented, again in a material way, the nature and scope of his intended work, both to the District and his neighbours . . . . . . [509] All these untruths or half truths were not offered in the courtroom. They nonetheless show that the defendant's history in dealing with the District has been one where his dealings have not typically been fully open and candid . . .

. . . [516] Thus, the amount of soil deposited is a material fact which I find the defendant wholly omitted to tell the District about andmisrepresented in court. His evidence on point is not reliable or believable. 2. He demonstrated a lack of respect for bylaws and municipal officers Ms. Dubinsky referred to as "city bureaucrats",who were said to be after his money: paragraph 410, November 3, 2015, reasons. 3. He carried on work, notwithstanding a stop-work order: paragraph 102, November 3, 2015, reasons. 4. The unauthorized activity was ongoing over an extensive period of time, approximately two months. 5.

Lack of acceptance of responsibility for his actions and blaming others, and in particular his own engineer, Mr. Yam,and the City officer, Mr. Frank Schulz. This submission is very close to asserting that at least Mr. Morshedian is not remorseful for whathe did. This is true. Neither he nor Ms. Janani at any time have clearly stated that they are sorry for what occurred. However, this lackof remorse is not to be seen as an aggravating factor. Rather, it means that, in the case before me, remorse is not a factor I can consideron the list of mitigating factors of which there are none: see the cases of R. v.

Zeek, 2004 BCCA 42, and R. v. Anderson (1992), (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.), page 535-6. 6. The work was done to benefit an investment property as part of the defendants' property rental for profit business. Ido not consider this to be an aggravating factor in a case of this nature. The offences would not be less serious, in my view, if theyoccurred in relation to a property the defendants themselves lived on. 7. The fill was of poor quality, or some of it was: paragraph 46 of November 3, 2015, reasons.

Here the reference is tothe defendants removing eight loads of soupy fill and being required to take them to Squamish, as no one else wanted them. I do notagree that this is an aggravating factor. The soil was likely soupy because it was then raining a lot. I am not of the view that thedefendants' conduct would have been less serious if all the trucked-on material in question was top grade top soil as compared toexcavated fill from Nelson Avenue. 8. The defendants were aware that the activity they engaged in was dangerous: paragraph 435 and 449 of November 3,2015, reasons.

The submissions suggest that the soil deposit work was done in a very rainy season and that the defendants knew or oughtto have known, as I have found they did, in essence, that this could be a cause of exactly what occurred. Coupled with this submission,Ms. Dubinsky argued that a further aggravating factor was Mr. Morshedian's not seeking professional advice and his recklessinvolvement in what she described as a do-it-yourself project. [41] Aggravating factors must, I think, relate to the offence or offender: see s. 718.2 of the Criminal Code of Canada.

I am not ofthe view that these are really classic aggravating factors, the last few referred to herein. These points are rather, in my view, aspects ofthe offences themselves. [42] There is no evidence that in 2013, or at any time, the District of West Vancouver was plagued by residents disobeying thebylaws in play in the case at bar. Likewise, the defendants do not have a criminal record nor, according to Mr. Creighton, is there anyevidence of their prior municipal bylaw breaches in the municipality of West Vancouver, or indeed anywhere else. They owned anddeveloped various properties without incident.

They are therefore both first-time offenders. Principles of sentencing [43] I have found that all offences in the case at bar are regulatory or public welfare offences. [44] In R. v. Abbott, 2008 BCCA 198, our Court of Appeal dealt with an appeal in part of a sentence under the Sewage DisposalRegulation and s. 104 of the B.C. Health Act, R.S.B.C. 1996, c. 179, where a property owner had installed a septic tank too close to theshoreline of Shawnigan Lake and refused, when ordered, to remove it.

Kirkpatrick J. stated that the principles of denunciation anddeterrence are generally seen to be applicable to public welfare offences: see paragraph 32, following the decision of R. v. Cotton FeltsLtd. (1982), (ON CA), 2 C.C.C. (3d) 287 (Ontario Court of Appeal), wherein this court held in part as follows at page294-5: In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensurestandards of conduct, performance and reliability by various economic groups and make life tolerable for all.

To a very large extent theenforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by acomplex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of actualand potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determinedby the need to enforce regulatory standards by deterrence. . . . . . . [In] R. v. Hoffmann-LaRoche Ltd. (No. 2) . . . Mr.

Justice Linden . . . stated the principles governing the amount of a fine as follows[at p. 570]: . . . The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap onthe wrist. The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might be mindedto engage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims. . . . [In] R. v.

Roussy . . . the court stated: But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the term

deterrent in its widest sense. A sentence by emphasizing community disapproval of

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

an act. This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public. [ 45 ] In R. v. Northland Properties Corporation , 2015 BCSC 1571 , Madam Justice Griffin dealt with a sentence appeal with respect to charges of harmful alteration, disruption, or destruction of fish habitat under s. 35(1) of the Fisheries Act , R.S.C. 1985, F-14.

In dealing with relevant principles of sentencing, she said this at paragraph 26 and 27, referring to an earlier British Columbia Court of Appeal decision in R. v. Brown , 2010 BCCA 225 : [26] The Court of Appeal in Brown also set out the sentencing principles for environmental offences, at paras. 13-14, citing in part R. v. Terroco Industries Ltd . . . : [13] The leading case on the principles of sentencing for environmental offences is R. v.

Terroco Industries Ltd. . . . which involved violations of the Environmental Protection and Enhancement Act . . . and the Dangerous Goods Transportation and Handling Act . . . At para. 34, the Alberta Court of Appeal adopted the comment in R. v.

Kenaston Drilling (Arctic) Ltd. . . . that sentencing principles for environmental offences require a special approach, and the court focused on the areas of culpability, past involvement with the authorities, acceptance of responsibility, harm and deterrence. [14] At para. 53, the court observed that deterrence is a key component of sentences for breaches of environmental protection statutes. The court commented, at para. 54, that when the maximum fines under an environmental statute are high, it is a message that low or nominal fines do not meet the goal of the statutes.

In the present case, the maximum fine under s. 40(1) of the Fisheries Act is $300,000 on a

summary conviction, and there is no maximum on the amounts that can be ordered to be paid under s. 79.2 of the Act . [27] In Terroco , the Alberta Court of Appeal described the "sliding scale" of culpability ranging from offences where the conduct is close to a mistake versus offences where the conduct was clearly intentional: at para. 35. [Citations omitted] [ 46 ] Lastly, in addition to the above cases, Ms. Dubinsky cites R. v.

Man Kei Enterprises Ltd. , 2010 BCPC 298 , where, in a case involving multiple breaches of Vancouver City bylaws relating to a single room occupancy hotel in the city, relating substantially to the owner's failure to do repairs and upkeeping, Meyers P.C.J. held that, in his view, the key sentencing principles were denunciation and general deterrence, the latter defined in paragraph 100 of his reasons as follows, and I quote: . . . the principle or objective of sentencing called, "general deterrence," that is, to deter others of a like mind to follow the law, rather than break it, because of a fear of a substantial penalty if they do not. [ 47 ] At paragraph 105, he said this in dealing with both specific deterrence and general deterrence: [105] I do not find that the need is here for a deterrence to this offender nor to recommit, but the other factors do have to be considered and that is, to denounce the unlawful conduct, to deter other persons from committing a like offence, and in some way to provide reparations to the community and the victims of these particular violations, and to acknowledge the harm done to victims and the community when Man Kei failed in their statutory obligation to keep things up to a minimum standard. [ 48 ] General deterrence is clearly a sentencing principle that is highly relevant in the case at bar. [ 49 ] I am of the view that specific deterrence is not a significant factor for me to consider in this case.

I accept Mr. Creighton's submission that thus far this entire matter has been an expensive one for the defendants, and I accept that they are not yet at the end of the road, so to speak. [ 50 ] Ms.

Dubinsky, for example, indicated in her closing remarks that the Municipality of West Vancouver will be looking to the two defendant homeowners to defray some or all of the costs of the remediation work that has now occurred, restoring the defendants' property and benefiting them by making it more valuable than it would have been if left in an unsafe condition. [ 51 ] I should note that I have been given few facts with respect to the scope and precise nature of the remediation work involved in dealing with the condition of the defendants' property.

I do understand it would have involved initially placing some log-like barriers at the foot of the south slope to absorb silty water and prevent it from further entering creeks or watercourses, and likely as well some grading work above. [ 52 ] As I understand Ms. Dubinsky's submission, remediation costs can be sought under the Community Charter , but that recovery by the District does not flow automatically or as of right when sought by the District.

Thus, while remediation has been substantially completed, I do not understand the cost of same or that this cost either has or will ultimately be borne by the defendants: see R. v.

Northland Properties at paragraph 60. [ 53 ] This factor is therefore not, in the case at bar, based on the evidence before me, one relevant to the amount of the fine, in my view. [ 54 ] Returning to specific deterrence, I accept that both defendants are well-educated and intelligent persons, and although neither has expressed any real remorse for what occurred, that they now clearly understand the necessity of making full and plain disclosure to municipal authorities with respect to any and all future work they intend to do on their various lands and properties or in residences thereon.

It seems unlikely, therefore, that either will again do what I have found they did in breach of any West Vancouver bylaw.

[55] Denunciation is explained by Lamer C.J. in the case of R. v. M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327(S.C.C.) at paragraph 81, as follows: . . . The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law . . . Our criminal lawis also a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated.

Inshort, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a mannerwhich positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [Emphasis in original] [56] Denunciation is therefore also a very important sentencing principle in the case at bar. [57] I have been provided with no case where a judge of this court, or indeed the Supreme Court of British Columbia, earliersentenced a homeowner for breach of the bylaws in issue in the case at bar.

There are thus no precedents and no submission can or hasbeen made as to an acceptable range of penalty or sanction or amount of fines. Position of the District [58] The District submits that a fit and just sentence in this case would be to fine Mr. Morshedian the maximum of $10,000 on eachcount and, because his spouse, Ms. Janani, was less involved, $7,500 on each count. This would result in a total fine of $140,000. Shenotes that Ms.

Janani was a co-owner of the property and it was a profit-making venture for both, and emphasizes that I found that shewas aware of the work being done on it, and that she facilitated the rental business by owning it and had the capacity to comply with thebylaws in issue, but did nothing to fulfil her legal obligations thereunder. [59] The District also seeks, pursuant to s. 263(3) of the Community Charter, an order that the defendants pay the costs of theprosecution. This

section states as follows: Division 2 — Offence Act Prosecutions Penalties in relation to Offence Act prosecutions 263

(1) A bylaw under section 260 (1) [enforcement powers] may establish one or more of the following penalties to which a personconvicted of an offence in a prosecution under the Offence Act is liable: (

a) a minimum fine; (

b) a maximum fine of up to $10 000; (

c) in the case of a continuing offence, for each day that the offence continues either or both of (

i) a minimum fine under paragraph (a), or (ii) a maximum fine under paragraph (b); (

d) imprisonment for not more than 6 months.

(2) If no other penalties are established in relation to an offence referred to in subsection (1), the penalties established by

section 4[general penalty] of the Offence Act apply.

(3) In a prosecution for an offence against a municipal bylaw, the justice or court may impose all or part of the penalties applicable inrelation to the offence, together with the costs of prosecution. [60] Mr. Creighton opposes my making such an order. I will deal with this point now. [61] Ms. Dubinsky noted there had been no judicial consideration of this or a similar provision anywhere in Canada. She said similarlanguage to that in s. 263(3) of the Community Charter could be found, as well, in the Vancouver Charter and the Local GovernmentAct.

Thus, she had no precedent to offer as to how a court might go about making the award she requested, as it has never hitherto beendone anywhere. Thus, she could not submit how, for example, other courts in other provinces had handled this request that she makes inthe case at bar. [62] Ms. Dubinsky drew my attention to s. 81(1) and (2) and (8) of the Offence Act, R.S.B.C. 1996, c. 338. There is no dispute inthis case that the Offence Act governs the

summary conviction proceeding before me in this case. These provisions state as follows: Investigation and prosecution costs 81

(1) In this section, "court" means the Provincial Court.

(2) If a person is convicted of an offence under a prescribed enactment, the court may order that the defendant is liable, after review andthe filing of a certificate under this section, for the costs of the investigation into the offence. . . .

(8) The Lieutenant Governor in Council may make regulations for the purposes of this

section including regulations that prescribe an

enactment for the purposes of subsection (2). [63] I understood her to state that a regulation entitled Investigation and Prosecution Costs Regulation No. 227/90 had been enactedunder s. 81 of the Offence Act. A copy was provided to the court by Ms. Dubinsky. It states succinctly in s. 1 as follows:

Interpretation 1 The enactments listed in Column 1 of the

schedule are prescribed for the purposes of section 81 (2) of the Offence Act. [64] There are no further sections. There then follows two columns, number 1 and number 2 to the right. Under Column 1, anumber of provincial statutes, four in total, are set out and sections thereunder. For example, Environmental Management Act, s. 120(2)(b), and under Column 2 opposite, the statement, "contravenes section 10(1)(a), (

b) or (

c) or (2)", whatever that means. There is noreference to the Community Charter, S.B.C. c. 26, at all in this Regulation. [65] I note that Ms. Dubinsky for the District seeks an order that I award "the costs of the prosecution". Section 81(2) of the OffenceAct speaks of the "costs of the investigation" into the offence, surely a different but likely related matter. Neither in the Offence Act orabove Regulation is any help provided as to what these costs might be, whether for the investigation or prosecution of alleged breachesfollowing an investigation. [66] Ms.

Dubinsky directed my attention to s. 263.1(5) of the Community Charter which deals with, for example, how themunicipality, where a person is convicted of an offence against a municipality bylaw in a prosecution commenced by an information inForm 2 under the Offence Act, as she says occurred here, can apply for compensation in addition to any penalty otherwise imposed. Thecourt may make: (

a) an award that does not exceed the monetary limit of the Small Claims Act for any damage or loss the municipalitysustained because of the commission of the offence; or (b), and I quote: . . . in accordance with the

schedule of costs prescribed under section 132(2)(

h) of the Offence Act, to pay to the municipality the costsincurred by the municipality in investigating and prosecuting the person. But she says there is no regulation made on point under s. 132(2)(

h) of the Offence Act; for example, setting out what the prosecutioncosts might be. [67] Clearly had our Provincial Legislature intended to deal with this matter, something, I suppose, might have been set out inRegulation 227/90 referred to above, which expressly deals with prosecution costs. One example might be to incorporate by referencecertain Supreme Court of British Columbia tariffs of daily costs. This has not been done. [68] Ms. Dubinsky invites me to use a similar methodology as per s. 81 of the Offence Act and, by analogy, somehow set the costs inthis way. [69] I decline to do so.

Section 81, as I have said, deals with the costs of investigation into the offence, not the costs of itsprosecution, very substantially, I should think, being lawyers' fees and related disbursements. No evidence has been placed before me asto what these costs might be. This claim fails on that point alone. [70] Our Legislature's intent could easily be made clear with a provision in Regulation 227/90 on point, referring to s. 263(3) of theCommunity Charter and setting out a simple

schedule of "costs of prosecution", or, I suppose, the Act itself in a further provision withinDivision 2 could spell out just what these costs are. None of this has been done. [71] Assuming without finding that this is the state of affairs elsewhere, I am not at all surprised that no Canadian judge has venturedinto these rather murky waters with a decision on point awarding costs. [72] I decline to venture beyond what I have said above and award no costs for the reasons above stated. Position of defence [73] I have touched above upon some of the multitude of points made by Mr.

Creighton, either in his oral or written submissions onsentence. I have carefully considered all of them. I do not intend to attempt to summarize all of them or comment on all of them. Somereally are critical of language in the bylaw or indirectly of my findings of fact on same now made. The defendants well understand ifthey are discontent with these matters that there is another place where they can go to seek relief. [74] I will deal with some of Mr.

Creighton's more important points. [75] He said that the defendants were professionals with lengthy involvement in both Canadian culture and the Farsi community, andthat following the publication of an

article in the North Shore News, following my initial reasons on November 3, 2015, persons in thedefendants' community asked him why he had blocked a creek. He suggested that the North Shore News report was not strictly accurate,as I understood his submission. [76] These inquiries and, to some extent, the reaction of some members of his community have been problematic and have led tosome suffering on the part of the defendants, both professional persons.

I am aware that humiliation often connected with the concept ofruin can be considered in the sentencing process as evidence of both denunciation and deterrence: see, for example, R. v. Gorman (1971), (ON CA), 4 C.C.C. (2d) 330, and R. v. Bunn, 2000 SCC 9 , [2000] 1 S.C.R. 183, where in the latter case theconvicted accused was a lawyer who lost his professional status. [77] I give this fact some weight, but note on the submission made, I cannot conclude that either defendant has been even close tobeing ruined by reason of the eight convictions I registered against them. [78] Mr.

Creighton notes that the civil collection process the defendants face will be very difficult for them and very expensive, as

has been their defence of the matters before me thus far. There is no evidence the defendants have paid anything yet for the cost of remediation of their property, which I have said would likely increase its fair market value to some extent, in any event. There is no evidence as to what these remediation costs might be or that the defendants will ever have to pay them all or in part. I give this point very little weight in my overall assessment of a fit and just sentence in this case. [ 79 ] Mr. Creighton seemed to argue that his clients' difficulty with the use of the English language was an issue in this case.

At page 3 of his written submissions he said this: While Mr. [Morshedian] has lived in Canada for a number of years his professional career was largely a very technical position in the nuclear industry. He was an electrical engineer and not a structural or a soils engineer with working knowledge of technical terms in the English language. His world was electrons, atomic particles and calculations of voltage, amperage resistance and esoteric atomic calculations. He was not a surveyor, soils engineer, or a structural engineer. [ 80 ] At page 4, on a related point, Mr.

Creighton said this in his written submission: Mr. [Morshedian] left City Hall with an honest but mistaken belief that permits were not required. This belief was in part based on the general nature of his plans. He did not have landscaping plans as his intention for the scope of the project was not a crystallized. While he wanted to put in gardens. The term garden in Farsi can refer to palatial acreage of trees, streams, waterfalls, etc, and not its typical use in English, which refers to a cultivated area of a lot or a vegetable patch. [ 81 ] At page 6 of Mr.

Creighton's further written submission, he said this: There is no clearer example of the concept that "we can't know what we don't know." than misunderstandings due to a failure to understand language. History is filled with examples of wars and disputes being started by communication failures. In addition, no matter how long an individual has lived in Canada if English was not their first language, they likely will have deficiencies in their understanding. This is even more so, where they are involved in a community where they can speak their birth language [sic].

While they may think they have good language skills and are trained as a professional in practice there may be many gaps or even large holes in their understanding of the English language. This is even more so in technical areas. . . . Simple terms also have very different meanings in Farsi, [than] the English. The English term garden is typically referring to an area of a lot devoted to flowers or shrubs. In contrast, in Farsi, the term garden can mean very large and substantial parks.

It is wrong to assume that his use of garden meant that he was only dealing with minimal work on his lot. [ 82 ] My overall sense of these submissions is that Mr. Morshedian's poor English language skills should be taken into account in assessing: (

a) what occurred; and (

b) the sentence the court should impose. [ 83 ] As I have said, Mr. Morshedian speaks English with a noticeable accent and at times when he testified before me he could be difficult to understand. I did not assess him as a person who had difficulty reading and comprehending the English language or understanding it when spoken.

If his own assessment of his ability to comprehend the English language was that it was wanting or deficient, as a man of some significant economic means, he was of course free, as is any citizen, to engage help in ascertaining what he needed to do to comply with all relevant West Vancouver bylaws. This he elected not to do. He owned four properties in West Vancouver at all material times. He could have afforded to do so, had he wished to do so. [ 84 ] There is no evidence as to what, for example, the word "garden" in Farsi or any related term really means. The argument on point seems to be that when Mr.

Morshedian told the West Vancouver employees what he was doing, he did so using English words, for example, "landscaping" or "gardening", that in Farsi had some very different and more extensive meaning, and thus he did not really misrepresent the nature and scope of his work to them. It was, rather, a misunderstanding as to what occurred. [ 85 ] I simply do not accept this. How would a West Vancouver municipal employee know what English words meant in the Farsi language. It was the English language that was the mode of communication at all material times.

As well, this was not a point raised at trial and one that counsel for the District could cross-examine Mr.

Morshedian on; namely, the defendant's comprehension of the English language and what, for example, terms like "landscaping" meant to a person whose first language was Farsi. [ 86 ] I am not of the view that the court, when sentencing a resident in West Vancouver for a bylaw breach, should provide a different and lesser penalty for same to a person whose first language is other than English, as compared to an English-speaking resident, unless there is clear evidence, lacking in the case at bar, that his or her culpability was less due to some misunderstanding that he or she should not be held accountable for. [ 87 ] Mr.

Creighton argues the bylaws are flawed, as they do not define "slope" and are therefore uncertain. He advanced the same argument unsuccessfully in his closing submission prior to my November 3, 2015, decision. He seems to invite me to reconsider part of that decision or this point again. I decline to do so. This point is not, in my view, relevant to sentencing. [ 88 ] He argues Mr. Morshedian had no malevolent intent in doing the work he did. He only wished to clean up his property and provide a level area for his tenants' enjoyment. It is not quite clear what Mr.

Creighton means by a malevolent intent in the context of the facts of this case. I do accept that Mr. Morshedian wished to improve his lot using a very substantial quantity of free excavated soil. Any suggestion that he did not understand the exact quantity of soil he was bringing on is nonsense. [ 89 ] Thus, his goal was not misguided or unlawful. Rather, the way he went about achieving it was unlawful, involved a lack of candour on his

part in telling his neighbours and West Vancouver officials exactly what he was doing, and ultimately involved harm to others and their lands, creeks, and watercourses thereon.

[ 90 ] Mr. Creighton's various criticisms of the manner in which the District prosecuted this matter, I think, are both unfounded and not really relevant to what would be a fit and just sentence in this matter. The argument advanced seems to be that had the District surveyed the defendants' lot at the outset and marked clear boundaries thereon, this would have precluded its need to call a great number of witnesses to prove what occurred. This procession of witnesses led to an unduly long trial and one which, had the District done an early survey, could have been avoided.

Thus I should, in considering sentence, take into account the fact that the accused was forced to face a longer trial and not a shorter one, all due to the fault of the District in its prosecution. [ 91 ] I do not accept this point. A significant number of District witnesses attended on the defendants' property in the early days following the discovery of the problem, namely turbidity in the water in Rodgers Creek main stem.

Their focus was on finding the cause of the problem as soon as possible and rectifying it, not on gathering evidence for a future prosecution. [ 92 ] One of the longest parts of this trial was, in fact, the defendant Mr. Morshedian's evidence of his various calculations and photo collages prepared with a view to convince the court, unsuccessfully as it turned out, that the cause of the above problem was something that occurred elsewhere than on his own lot. [ 93 ] Mr. Creighton submits at page 5 of his closing written submission that Mr.

Morshedian had no plan, seemingly in disagreement with my finding that he materially misrepresented the scope of his ongoing and intended work on his property. The inference I suspect I am being asked to draw is that little weight should be given to my finding, because Mr. Morshedian really, when he dealt with the West Vancouver officials, did not quite appreciate the precise scope of the work that would occur, which was really driven by the quantity of the soil he had committed to take. The submission is as follows, and here I refer again to Mr.

Creighton's written submission: No Plan Much is made of the fact that Mr. [Morshedian] misled his neighbors and City Hall regarding the scale of what he intended to do on the property. However, his plan was in part the result of the fact that he was given soil from another excavation. This was a huge cost saving to both Mr. Morshedian and the other contractor who would've otherwise had to dump the soil in a landfill at some cost. When he accepted this soil.

He was not aware of the precise volume and having committed to take the soil he used it to level his property and to fill in the holes created by the removal of the stumps. [ 94 ] In my November 3, 2015, decision, I found, as above, that he misled both the District and his neighbours with respect to the scope of his ongoing and intended work. Mr.

Morshedian gave no evidence at trial, as I recall, that he had committed to take all the soil from the Nelson Street excavation, nor did he testify he did not really appreciate how much soil would be delivered. [ 95 ] It was my understanding that he could have stopped the delivery of excavated fill to his lot whenever he wanted. His commitment or lack of commitment to the provider of the free fill aside, what really mattered was his being candid with the West Vancouver officials about what he was doing on his lot.

If the scope of the ongoing work changed, whether or not he had a plan, he ought to have gone back to the District and told them of the new increased scale of the work. He did not do so. I reject this "no plan" argument as having any bearing on the sentence I should craft in this matter. [ 96 ] Mr. Creighton argued for the first time, and as his very last point, that the minimum sentencing provisions of the three bylaws were likely invalid, as they remove my discretion in crafting, I assume, a fit and just sentence.

He said this at page 7 of his written submission on point: The bylaw deals with the statutory minimum. It is respectfully submitted that the statutory minimum must be related to the offense whether it is committed by one [or] two individuals. The Supreme Court of Canada in the decision of R. v. Nur, 2015 SCC 15 . . . held that The mandatory minimum imposed by s. 95(2) ( a )(

i) and (ii) of the Criminal Code violate s. 12 of the Charter and are null and void under s. 52 of the Constitution Act, 1982 . [ 97 ] In his oral submission on point, Mr. Creighton, invited me to go through the R. v. Nur decision, and thereafter determine, on my own motion, that the minimum fine in the bylaw should not stand. He very briefly referred me to various passages therein. [ 98 ] Ms. Dubinsky said the District had received no notice of this submission, formal or otherwise. Mr. Creighton admitted that this was correct. Ms. Dubinsky believed the B.C.

Attorney General would have had to have had notice, as well, and suggested it was unlikely that this had occurred under the provisions of the Constitutional Question Act . Mr. Creighton did not disagree with this submission. [ 99 ] R. v. Nur involved an attack on s. 95(2) (a)(

i) and (ii) of the Criminal Code of Canada , which provided for mandatory minimum terms of imprisonment for possession of loaded prohibited firearms. The court held that these mandatory minimum sentences imposed by the Criminal Code of Canada violated s. 12 of the Charter , a prohibition and right not to be subjected to any cruel and unusual treatment or punishment, and were thus null and void. [ 100 ] Having regard to the complete lack of proper notice of this issue and, as well, that there was really no reasonable argument on this point made by either counsel at the sentencing hearing, and in particular Mr.

Creighton, I decline to deal with this point. That said, I might add that I am not of the view, in any event, in the circumstances of this case, where the defendants own four no-doubt million-dollar-plus properties, that the minimum sentence as set out in the three bylaws in issue, if imposed on both defendants, could be seen on any reasonable basis whatever to be cruel and unusual punishments. Fines in cases like this should not be seen to be merely an additional cost of doing business, as the above cases make clear. [ 101 ] Mr.

Creighton submitted that because neither defendant had a criminal record, that they should receive the minimum sentence. As well, that a single offence committed through the action of several people could not give rise to multiple offences. Thus, for purposes of the minimum fine specified in the bylaws, a single offence does not become multiple offences merely because a number of people participated in committing the offence through action or inaction. [ 102 ] As an example of this point, Mr. Creighton said that otherwise, and again I quote his written submission:

. . . a person who was a sole owner of a property having committed horrendous bylaw offenses would only face fines of $5000-$10,000,while three individuals on the same property engaging in much less serious offenses would be faced with total fines of $15,000-$30,000. [103] I have found that both homeowners are guilty of the eight bylaw breaches or offences. They are thus, as owners, both guilty ofnon-compliance with same. However, I accept that, of the two, Mr.

Morshedian is more culpable as he had the majority of the dealingswith the property, the excavated fill, and what was done with it, and had all dealings with the District of West Vancouver officials. [104] Mr. Creighton argued that the maximum fine should not be set for each offence, as the maximum sentence should be reservedfor the worst and repeat offenders, typically with a history of past bylaw violations. Because the minimum sentence was likely invaliddue to his above Charter argument, a suspended sentence would be more appropriate for a first-time offence.

I have no legal ability toaward a suspended sentence in this case. I have not and do not find the bylaw to be invalid. The various penalty sections give me theonly jurisdiction I have for purposes of sanctions. [105] Even if I could award a suspended sentence, I would not do so. Such a sentence completely overlooks the relevant sentencingprinciples in the cases referred to above and would, in my view, provide no deterrence or denunciation at all to others who might thenfeel they could breach most West Vancouver bylaws on the scale that occurred here with impunity. [106] I do, however, agree with Mr.

Creighton that, as a general rule, that the maximum sentence should generally be reserved for theworst offence committed by the worst offender: see for example, R. v. Ko (1979), (BC CA), 50 C.C.C. (2d) 430(B.C.C.A.), page 436. I also agree with Mr. Creighton that in the case at bar, there was not a river of mud that, for example, adulteratedand damaged the three creeks or watercourses in issue for a substantial period of time or in a very substantial way. On this analysis, thedamage caused by otherwise serious breaches was attenuated.

Conclusion [107] An appropriate sentence in the case at bar for each defendant must do the following:

a) it must reflect the principles of sentencing referred to in the cases above, including the need to deter others who might do what thedefendants did here; and

b) take into account the principles in ss. 718, 718.1, and 718.2 of the Criminal Code of Canada dealing with sentencing, all of which Ihave considered; and

c) must be proportionate to the offence and reflect the degree of culpability of each defendant. [108] As in R. v. Northland Properties, the breaches here in issue occurred due to actions on the part of the defendants for purelyselfish reasons, to increase the usefulness and value of their lot in West Vancouver. In such cases where breaches occur for such reasons,the moral blameworthiness of the offence or crime is great or at the high end of the scale: see paragraph 82, R. v.

Northland Properties. [109] I am also of the view that the total or overall fine I impose for all breaches should not be unreasonable. [110] Having considered all submissions and all of the above factors, I fine Mr. Morshedian $7,500 on each of Counts 1 to 6 and 9 to10, and Ms.

Janani $5,000 on each of the same counts, the minimum fine on each count, for a total fine of $100,000. [111] In my view, such fines will appropriately deter them and, far more importantly, others from doing what they did in future, and aswell appropriately denounce their conduct. [112] Under the circumstances, with no representative from the defendants being present in my courtroom, I will give the defendantsuntil April 22, 2016, to pay this fine.

In the event that they require more time, they are to set an application before me in the month ofApril, prior to April 22, 2016, and I will consider any submissions they have with respect to an extension of time in which to pay thisfine. [113] Those are my reasons. [114] Madam Clerk, I trust I have made it clear I am ordering a transcript of these reasons not on an expedited basis. [115] THE CLERK: Yes, Your Honour. [116] THE COURT: When that transcript is made available to me I will review it, it will be finalized.

A copy of these reasons will beplaced in the court file and it is highly likely that a copy of the reasons will find its way onto the electronic database of decisions ofjudges in the Provincial Court of British Columbia. All right.

Thank you. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [117] THE COURT: As there was no counsel for the defendants present in this matter before me this morning, I was not able toreceive submissions as to whether a victim fine surcharge applied with respect to this matter at all and, if so, what the amount should beand, if so, if there was an amount involved, a date by which the victim fine surcharge might be paid. [118] In the result, I invite both parties to deal with this matter in the month of April 2016, on a date that is convenient, to be set beforeme, at which time I will receive very brief submissions on point. (REASONS CONCLUDED)