R. v. Pasco Seafood Enterprises Inc., 2019 BCPC 228

Citation: R. v. Pasco Seafood Enterprises Inc. 2019 BCPC 228 Date: 20190204 File No: 60520 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PASCO SEAFOOD ENTERPRISES INC. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L.P. SMITH Counsel for the Crown: A.R. Clarkson Counsel for the Defendant: B.R.B. Morahan G. Harris Places of Hearing: Richmond, Robson, North Vancouver, B.C. Dates of Hearing: January 21 and February 4, 2019

Date of Judgment: February 4, 2019 [ 1 ] This sentencing decision comes after a lengthy trial, at the conclusion of which I found Pasco Seafood Enterprise, (“Pasco”,) guilty of all five charges set out in Information 60520, specifically: Count 1: that between the 5th of August and 8th of August 2011, at or near the city of Richmond, British Columbia, Pasco did unlawfully buy fish, to wit, salmon, not caught under the authority of a licence, contrary to s. 35(2) of the Fishery (General) Regulations , thereby committing an offence under s. 78(

a) of the Fisheries Act . Count 2: that Pasco, between the 5th and 8th of August 2011, at or near the city of Richmond, British Columbia, did unlawfully purchase fish, to wit, salmon, caught in contravention of the Fisheries Act or regulations, to wit, caught during the closed time, contrary to s. 33 of the Fisheries Act , thereby committing an offence under s. 78(

a) of the Fisheries Act . Count 3: that between the 5th and 10th of August 2011, at or near Richmond, British Columbia, Pasco did unlawfully possess fish, to wit, salmon, caught in contravention of the Fisheries Act or regulations, to wit, caught during the closed time, contrary to s. 33 of the Fisheries Act , thereby committing an offence under s. 78(

a) of the Fisheries Act . Count 4: between the 6th and 10th of August 2011, at or near the city of Richmond, British Columbia, Pasco did unlawfully sell fish, to wit, salmon, not caught under the authority of a licence, contrary to s. 35(2) of the Fishery (General) Regulations , thereby committing an offence under s. 78(

a) of the Fisheries Act . And finally, Count 5: that Pasco did, on or between the 6th of August and 10th of August 2011, at or near Richmond, British Columbia, unlawfully sell fish, to wit, salmon, caught in contravention of the Fisheries Act regulations, to wit, caught during a closed time, contrary to s. 33 of the Fisheries Act , thereby committing an offence under s. 78(

a) of the Fisheries Act . [ 2 ] The reasons for judgment are found at 2018 BCPC 377 . [ 3 ]

Section 78(

a) of the Fisheries Act reads as follows: Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both. [ 4 ] While s. 78.1 of the Act provides that each day that an offence occurs a new offence is committed, the Crown does not seek such an approach here, taking the position that each count on the information should be treated as a single offence, with maximum exposure of a $100,000 fine.

In addition to s. 78, the Fisheries Act provides for the imposition of an, "additional fine" under s. 79, (where an offender has acquired monetary benefits, or monetary benefits have accrued to the person as a result of the unlawful activity,) and as well, for an order that monies be paid to Her Majesty the Queen in certain circumstances, pursuant to s. 79.2(

f) of the Act . THE PARTIES' POSITIONS : [ 5 ] The Crown says that the appropriate sentence in this case is a total monetary penalty of $175,000, made up of penalties pursuant to s. 78 and s. 79.2(

f) of the Fisheries Act , as well as an additional fine under s. 79 in the amount of $298,131.37, being the gross monetary benefit received by Pasco for the sale of the unlawful fish. [ 6 ] Pasco says that the appropriate penalty is more properly in the range of $50,000. With regard to an additional fine under s. 79, Pasco says it is a discretionary fine and that any such fine should reflect the net amount of any monetary benefit acquired by Pasco, not the gross figure. Pasco says that an order under s. 79 and any order under s. 79.2(

f) must both be considered within the overall principles apposite sentencing and engage the principle of totality. Pasco says that any order under s. 79.2(

f) is also discretionary. [ 7 ] While there is no disagreement that the principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code apply here, and while Pasco does not disagree that R. v.

Terroco Industries Limited , 2005 ABCA 141 , guides the court with regard to particular considerations at the fore of environmental sentencing cases as advanced by the Crown, the parties do not agree on the resulting application. [ 8 ] Pasco says the issues relating to moral culpability, totality, and parity are of particular significance in this case and should result in a far lesser sanction than that urged by the Crown. [ 9 ] The Crown says that the particular facts of this case do not displace the paramountcy of deterrence and protection of the environment as being critical considerations on this sentencing, and points to factors which it says are highly aggravating. [ 10 ] The parties disagree as to the impact upon sentencing of Pasco's being sold to a third party, post offence, but pre-charge and, as well, disagree about the extent and significance of the harm in this case, relevant to determination of the proper sentence.

[ 11 ] Further, Pasco says that the delay in this case is a significant mitigating factor; the Crown, on the other hand, says that the delay is only of minimal mitigating significance. [ 12 ] Finally, the parties disagree as to whether the rule against multiple convictions applies: The Crown says that it does not apply, while Pasco says that Count 3, (the possession charge,) is an included offence of the buying and selling counts, and says, as well, that a conviction cannot be entered on both Counts 1 and 2, (buying and purchasing,) and both Counts 4 and 5 (selling, times two.) THE ISSUES : [ 13 ] Thus, while the main issue is, "What is the appropriate sentence for this offender in regard to these offences," the following issues must be decided in order to answer that question: 1.

What are the appropriate sentencing principles here, and how should they apply? Within this issue is the question of the impact of Pasco's purchase by a third party in 2013. 2. Is an order pursuant to s. 79.2(

f) available and/or appropriate in this case? 3. What is the proper

interpretation of "monetary benefits" in s. 79, and what is the application of that section, if any, here? 4. Is delay a mitigating factor? 5. Does the rule against multiple convictions apply to any of the counts on the information? [ 14 ] Before addressing these issues, I will turn to a consideration of the offender and the offence. THE OFFENDER : [ 15 ] The reasons for judgment set out the facts underpinning the trial findings, including circumstances relating to Pasco, the offender. Briefly, in 2011, Pasco was a private corporation in the business of buying, processing, and selling fish.

Its president was Jason Ogilvie, who testified that Pasco sourced its fish from Alaska, Russia, and Canada. According to its head of sales and co-owner, Casey Sugden, its annual sales were about 20 million dollars. [ 16 ] Pasco's processing plant and main sales office and operations office were located in Richmond, although there was an Eastern Canada Sales division, as well. [ 17 ] Pasco was incorporated in November 2006, and its officers and senior management and employees enjoyed many years of cumulative experience in the heavily regulated fisheries industry.

Pasco was engaged in a competitive industry where those first to market with product could predictably realize an economic advantage.

Pasco was conversant in the overall regulatory scheme which applies to fisheries on B.C.'s coast; it was aware of the different fisheries and their priorities: First Nations Food Fish fisheries; aboriginal economic fisheries, (which permitted sales of fish caught by First Nations fishers); standard commercial fisheries and test fisheries, as well as the overall scheme of area closures, but for the Department of Fisheries and Oceans openings. [ 18 ] Pasco was charged with these offences in July 2016. [ 19 ] Evidence led at the sentencing hearing establishes that in 2013 Pasco entered into a share purchase agreement with another corporation, Seven Seas, whereby Mr.

Ogilvie and Mr. Sugden were paid several million dollars for their shares in Pasco. Since that transaction, Pasco has remained extant but has not been commercially active. [ 20 ] During this case, an employee of Seven Seas testified in Pasco's defence, after gathering evidence on its behalf. Casey Sugden, I am advised, is now an employee of Seven Seas. Mr. Ogilvie is not. THE OFFENCES : [ 21 ] The evidence at trial proved without doubt that on August 5th and 6th, 2011, Ronald Sparrow, using a seiner vessel, caught 18,046 Sockeye, 1,755 Pink salmon, 20 Coho, 25 Chum salmon, and 9 Chinook. All 29,855 fish died.

They were removed from the ocean in an area designated by Fisheries regulations as “Area 12” and then offloaded at Pasco's direction, and most were transported, on Pasco's instruction, from Port Hardy to Pasco's processing plant, and then, for the most part, sold by Pasco, generating $290,131.37. [ 22 ] The fish were caught immediately before the commercial opening of the waters of Johnstone Strait, off the northeast end of Vancouver Island. The opening, a gillnetter opening set for August 8th, was for Fraser River Sockeye, a valuable fishery which is environmentally vulnerable.

The evidence proved that Pasco knew that Area 12 was closed to commercial fishing on August 5th and 6th and knew, as well, that Mr. Sparrow had no licence within the meaning of the Fisheries Act . [ 23 ] In the course of committing the offences, Pasco created false documents called landing slips. Pasco presented the landing slips to DFO officers when the officers attended the Pasco Richmond offices on August 8, 2011.

Pasco sought to rely on the landing slips at trial, saying that the company's officers believed that the landing slips were proof that the fish were legally caught by First Nation fishers for sale. [ 24 ] In addition, Pasco sought to rely on a false contract, which it said essentially inserted a second company, Nu Natural, between Pasco and the fishing.

While not believable, the documents demonstrate the planning attendant on the scheme. [ 25 ] Instead of being mistaken or simply exercising lack of care, Pasco was highly cognizant of the regulatory context within which it operated and exploited the regulatory scheme to conceal its unlawful activity: The company representative dealing with the off- loaders in Port Hardy, (near to where the closed area fishing occurred), described the fish that Mr. Sparrow caught as "food fish" to the off-loaders, who would know that, given the closure and known test fisher in the area, the fish could not reasonably, lawfully be

anything other than First Nations Food Fish. Other Pasco representatives, who were engaged in the sale of the fish, referred to it as "test fish" when it could not reasonably, lawfully be food fish, and Pasco referred to it as “First Nation economic fish,” when it could not reasonably, lawfully, be food fish or test fish.

Pasco's changing characterization of the same fish reveals Pasco's sophistication and intended manipulation of the regulated field. [ 26 ] The motive for the breach of statute and regulation is profit and economic advantage over law-abiding fishers, pure and simple, as is evidenced in an email from Jason Ogilvie, sent at 9:24, the morning of August 6th, to Pasco's officer, Casey Sugden and employees Chris Mydske, Roger Banting, David Sugden, regarding 70,000 pounds of Sockeye, between four and six pounds each: "I would like to sell as much of this as possible, fresh.

We have a one-day advantage over our competitors, as gillnet opens on Sunday. This is our time to make some money on a short market. Let's take advantage, but remember the market will only be short till Tuesday p.m." [ 27 ] Pasco sold the fish caught by Mr. Sparrow for just under $300,000. [ 28 ] The offences are strict liability offences, which means that the burden of proof is upon the Crown to prove beyond a reasonable doubt that Pasco committed the charged prohibited act, without the requirement that Pasco's intention be proved.

That said, the trial evidence left no doubt that Pasco's actions in the summer of 2011 were intentional, deliberate, and planned, aimed at its securing an economic advantage over the law-abiding fishers in the valuable Johnstone Strait Sockeye fishery, who awaited the DFO opening.

THE ISSUES : Issue 1: What are the appropriate sentencing principles here and how should they apply? [ 29 ] The parties agree that the sentencing provisions of s. 718 through 718.2 of the Criminal Code apply to this sentencing but, again, they disagree on the application of those provisions to this case. [ 30 ] The sections provide that the fundamental purpose of sentencing is to protect society, to contribute to respect for the law and maintenance of a just, peaceful, and safe society, by the imposition of just sanctions.

Sentencing objectives include denunciation, deterrence, separation from society where necessary, rehabilitation, reparation, and promotion of a sense of responsibility in offenders, and acknowledgment of harm done to victims or to the community. The importance of any one of these objectives differs with the nature of the offence and the offender. A fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the offender's degree of responsibility.

As well, the Code sets out that principles of parity, totality, and restraint are to be engaged in crafting a fit sentence, and that consideration must be given to factors which are aggravating and which are mitigating. [ 31 ] The Crown relies on Terroco for the proposition that in environmental protection offence sentencings such as this, a "key component" must be specific and general deterrence; see paragraph 53 of the decision. [ 32 ] In R. v. Brown , 2010 BCCA 225 , the B.C.

Court of Appeal identified Terroco as the leading case with regard to the appropriate sentencing principles in relation to environmental offences. Mr. Justice Tysoe confirms that such hearings require a "special approach" with a focus on (

i) culpability, (ii) prior involvement with the authorities, (iii) acceptance of responsibility, (iv) harm, and (

v) deterrence, (at paragraph 13 of Brown ). [ 33 ] I note that the principles articulated by the court in Terroco arose in the context of a case about negligence, insufficient oversight and resulting accidents, harm and risk of harm. (

i) Culpability [ 34 ] With regard to culpability, the court in Terroco stated, "The degree of carelessness is a factor in sentencing for environmental offences." The court describes a sliding scale, with the less diligent offender attracting the higher range of fit sentence, (paragraph 35.) The scale ranges from where an offender nearly exercises due diligence, to situations where the Crown nearly establishes intent on the part of the offender; (paragraph 37.) The factor of culpability is described as an important one; (paragraph 37.) [ 35 ] The Crown says that Pasco's culpability is on the very high end of the scale here.

The Crown points to findings at trial that the offences were not caused by negligence, but were, rather, planned and deliberate, with a view to Pasco's acquiring the thousands of fish before commercial access to the fish was made available to anyone else, all driven by profit motive or greed. As well, the Crown says that Pasco was instrumental in the scheme, agreeing to buy the fish, organizing its off-load at Port Hardy and transport to the Lower Mainland, and then selling it.

The Crown says that the company's change in ownership in 2013 does not reduce its culpability with regard to these offences that occurred in 2011. [ 36 ] Pasco says that a significant factor in assessing culpability here is that the corporate entity before the court at this sentencing is comprised of different owners than when the corporate entity committed the offences. Counsel says that the result of this is that, in real terms, the corporation being now sentenced has little or no moral culpability.

Pasco says that Terroco 's focus on culpability relates to specific deterrence, and that given that Pasco is comprised of different individuals who have expressed remorse, and given that Pasco has been out of operation, (albeit still a corporation in good standing,) in considering culpability, specific deterrence has far less import here than in other environmental cases where the actual guilty perpetrator is being sentenced. [ 37 ] Considerations of culpability relate to the fundamental principle of sentencing: that a sentence must be proportionate to the gravity of the offence and the offender's responsibility.

Here, there is no doubt that Pasco's responsibility for the offences was at the very highest end. The whole enterprise that the company was engaged in was profit-driven, with a view to getting an economic advantage over the law-abiding fishers who awaited the DFO opening. Pasco engaged innocent third parties in its scheme -- the off-loaders and truckers at Port Hardy, as well as the purchasers - local, national, and international. Pasco lied to DFO about the landing slips and about the role of an apparently insulative company in the purchase, Nu Natural.

[ 38 ] Counsel urges that the corporate veil should be pierced such that the current owners of Pasco, innocent of the offences of which Pasco has been found guilty, are before the court. I am not persuaded that that would be an appropriate course.

As an incorporated company, Pasco is faced with the reality that the Crown charged the corporation, not its individual officers or directors, and that Pasco is a distinct legal individual for the purposes of this legal proceeding. [ 39 ] With regard to the culpability sliding scale discussed in Terroco , supra , where the highest end is “near intent,” Pasco's culpability is off the scale and attracts a finding of the highest culpability in that the evidence has proved that Pasco was not negligent or reckless or engaged in substandard behaviour, but, rather, it proved that Pasco's acts were calculated, designed, sophisticated, greed- driven breaches of the regulations. (ii) Prior Record [ 40 ] The parties agree that Pasco's lack of previous enforcement history is a mitigating factor.

That is so. (iii) Acceptance of Responsibility [ 41 ] With regard to remorse and acceptance of responsibility, the court in Terroco , supra , noted that an early guilty plea is a mitigating factor, in its cost saving value and as an expression consistent with an offender's rehabilitation. These are not factors here. That said, the Alberta Court of Appeal also observes that an accused exercising his right to trial is not an aggravating factor; it is neutral.

I have no doubt that that is so. [ 42 ] The court placed little import on post-conduct changes as mitigating factors, noting that offenders are expected to comply with environmental protection regulations, (paragraph 41.) [ 43 ] Early reporting, co-operation, and exercise of remedial actions are identified as mitigating factors, (paragraph 42.) No such factors exist here. [ 44 ] Pasco says that its new owners, Seven Seas, has expressed remorse for Pasco's actions. [ 45 ] The Crown notes that an employee of Seven Seas participated in gathering defence evidence during this trial and that Pasco's Casey Sugden is an employee of Seven Seas. [ 46 ] All in all, considering the foregoing, and the law as articulated in Terroco , I find that this factor is neutral on the sentencing hearing.

While a guilty plea would be a mitigating factor, this offender was entitled to exercise its right to a trial, with no consequential downside, should it have been found guilty, as the case is, here. (iv) Harm [ 47 ] With regard to the factor of harm, Terroco directs a sentencing judge in an environmental protection case to fully consider the existence of "potential duration and degree of harm." The court states, "if actual harm is established that is an aggravating factor, especially when the harm is a readily foreseeable consequence of the underlying action." [ 48 ] The court notes that harm is often not easily identified in environmental cases, but that lack of same is merely a neutral factor, while actual injury is an exacerbating factor, (paragraph 47.) As well, the potential for harm is a relevant sentencing factor: the greater the risk of harm, the greater the penalty warranted, (paragraph 48.) The fragility of a site may be an aggravating factor, (paragraph 49.) [ 49 ] At sentencing, the Crown filed an impact statement written by Beth Pechter, a fishery management coordinator at Fisheries and Oceans Canada.

During the trial, photos of dead fish were entered into evidence. I will deal with actual harm, first, turn next to potential harm, and then discuss briefly the fragility and character of the Fraser River Sockeye run. (

a) Actual Harm [ 50 ] The Crown says that the harm factor is significantly aggravating, given that 29,855 salmon, totaling 141,430 pounds, were killed. Applying the Terroco analysis, the Crown says there were at least four facets of the harm done: environmental, social, commercial, and to the overall integrity of the fishery.

In addition to relying on the impact statement filed on sentence, the Crown relies on evidence of former chief of the Namgis First Nation, Bill Cranmer, adduced at trial. [ 51 ] Pasco says that there is no evidence of actual environmental habitat harm, social or commercial concern, and no evidence of actual harm to the overall integrity of the fishery, caused by its actions. [ 52 ] There is no doubt that 29,855 salmon were killed in the course of the activities in which Pasco was intentionally engaged in early August 2011.

But for its willingness to buy the illegal fish, there was no other evident market for it, and I have no doubt that it would not have been caught by Mr. Sparrow on August 5th. That is actual harm. (

b) Potential Harm [ 53 ] The Crown relies heavily on the impact statement. [ 54 ] Pasco says that a number of factors set out in that statement are not considerations here, because they relate to duties upon vessels and fishers, and Pasco was neither. Pasco points out that much of the focus of the impact statement is on the effect of non- reporting of unsanctioned catch. Here, counsel says that Pasco provided DFO with accurate numbers of fish caught on August 5th and 6th by Mr. Sparrow, when DFO attended the Pasco plant on August 8th and, as well, that Mr.

Sparrow provided the catch numbers when Fisheries officers spoke with him on August 10th, 2011. [ 55 ] I pause to note that according to the evidence at trial, as well as the impact statement, the authorized commercial fishing would

have been underway or completed by the time DFO had the numbers from Pasco and Mr. Sparrow. Thus, the permitted fishing would have been based on numbers that did not reflect Pasco's take of 4.2 percent of what had been identified as the total allowable Canadian commercial catch that summer.

I am satisfied that the risk of harm identified in the impact statement is an obvious one, and I accept it as a fact and find that Pasco's integral involvement in the scheme renders it a relevant factor on this sentencing. [ 56 ] The impact statement notes that the Fraser River Sockeye fishery requires a high level of in-season management and timely information on the assessment of stock levels and harvest levels, which is critical for the proper management of the fishery, (at page 2).

In the context of management of this particular fishery, I have no doubt that the information (which was provided after the commercial fishery had occurred) was of limited use to manage the 2011 run, and risked adversely impacting that management. [ 57 ] I also accept as proven the incidental potential harm to the bycatch of, Chinook, and Steelhead. Ms. Pechter writes: "Should the incidental harvest of bycatch exceed acceptable levels, fishing is curtailed.

Catch reports are therefore required so that fishery managers can monitor the in-season encounters of species or stocks of conservation concern," (at page 3.) [ 58 ] Again, by the time DFO got the bycatch numbers from Pasco, the opportunity to curtail fishing to protect the bycatch species was over, or close to it. Such conduct causes potential harm to the species and actual harm to the management of the resource. [ 59 ] The defendant says that Mr.

Sparrow said that the Namgis chief had agreed to the harvest and that the Namgis First Nations received some of the fish and that the permit provides for that potential. I note, however, that at trial Mr. Cranmer did not agree to having authorized a commercial harvest and that he testified that the Namgis received a few hundred fish, as I recall, after the DFO got involved and spoke to Mr.

Sparrow by the fishing grounds. [ 60 ] The court in Terroco noted that foreseeability of unwanted consequences is an aggravating factor, (paragraph 37.) [ 61 ] While Pasco was not itself under a duty to report, (as was the fisher,) there is no doubt on the facts that Pasco knew that non- reporting in a timely manner was likely to occur, with the attendant potential harm. (

c) The Fragility and Significance of the Site [ 62 ] The impact statement describes the Sockeye caught here as follows, "The Fraser River Sockeye are considered one of the most important Pacific salmon stocks, by all harvesters. Fraser Sockeye have always played a significant role for First Nations located adjacent to the Sockeye migration route.

Fraser Sockeye have high commercial value and, when abundant, form the basis of a significant commercial fishery shared by Canada and the U.S." [ 63 ] These observations are consistent with trial evidence. [ 64 ] A further factor here is the vulnerability of the run and its lack of predictability when it comes to abundance. Witnesses at the trial testified to this. [ 65 ] In the result, I am satisfied that real harm has occurred here by the killing of the thousands of fish, which was a critical and obvious piece in Pasco's scheme to buy, possess, and sell the Fraser River Sockeye caught by Mr.

Sparrow before any such fish was on the market. As well, potential harm occurred to the proper in-season management of the Sockeye and the bycatch, putting all species at risk of being overharvested. That constitutes potential risk to the species and to the integrity of the fishery management scheme. [ 66 ] The unpredictability and notorious potential scarcity of the run is a further aggravating factor. (

v) Deterrence [ 67 ] The last Terroco factor is deterrence.

In that case, the court describes general and specific deterrence as, "a key component of sentences imposed for breaches of environmental protection statutes," (see paragraph 53.) The court cites the high fines available in the statute before it as the Legislature's signal that low or nominal fines do not meet the goals of that particular environmental protection legislation, (paragraph 54.) [ 68 ] With regard to specific deterrence, the court observes that an offender who cooperates with authorities is in a different position than an offender who tries to conceal its wrongdoing, (paragraph 56.) The court admonishes against permitting offenders to benefit from their unlawful conduct and urges judges to use, "the full arsenal of sentencing options," available to them, (paragraph 57.) [ 69 ] In R. v.

Schafhauser , 2017 BCSC 2017 , Justice Punnett explains the protective role that deterrence is aimed at in the context of activities related to unlawful commercial fishing, noting the value of the resource and, implicitly, its attraction and resulting vulnerability: [11] The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must be taken seriously. Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused and generally of other members of the public who are inclined to act in the same manner.

Penalties must be sufficiently severe to communicate to the accused that there is a high risk associated with their illegal activities both for the resource they are affecting and to themselves for their conduct. [ 70 ] Pasco urges that there not be an overemphasis on deterrence in this case, noting the change in corporate ownership. Counsel says that I must temper such an approach with all of the other relevant sentencing principles, including totality and restraint. [ 71 ] Among cases relied upon by Pasco is R. v. Adam Clark Company Limited , 1982 3 C.C.C. 323 .

This case is relied on in support of the proposition that where new shareholders are before the court, being sentenced with regard to offences that occurred before their ownership, this fact can be viewed as a mitigating factor, albeit not so mitigating that the deterrent effect is lost.

[ 72 ] However, the Crown points out that unlike the case at bar, the underpinning "acts and charges were not in the purview" of the new owners in Adam Clark , when they bought the business. [ 73 ] In this case, an affidavit has been filed which sets out that Seven Seas had been aware of the DFO investigation into Pasco's activities underpinning these charges in 2011. Notwithstanding that, they went ahead with the purchase of the company, based on Pasco's officers' representations. That is factually different from the facts in Adam Clark , supra. OTHER CONSIDERATIONS ON THIS SENTENCING : (

i) Restraint [ 74 ] With regard to corporations, the court in Terroco instructs that the offender's general ability to pay is relevant, noting that the impact of a given fine on individual deterrence will vary depending on the means of the offender, (paragraph 58).

That said, the court also sets out that regard must be had to securing a deterrent effect on others in the given industry who may be tempted to offend; this requires ensuring that the fine imposed be more than a licencing fee for illegal activity or the cost of doing business, but should not result in economic inviability, (see: paragraph 60.) However, the financial position of a corporation is only one factor to be considered, (paragraph 62.) [ 75 ] A decision by the offender to take shortcuts for likely economic advantage must be discouraged by a fit sentence that is consistent with compliance being cheaper than offending, (paragraph 63.) Finally, the court directs that consideration be given to the size and profitability of the transaction resulting in the breach, and whether or not it was an isolated event, (paragraph 59.) (ii) Parity [ 76 ] A further principle urged by Pasco is parity.

Pasco contends that the Crown's decision not to prosecute others involved in the unlawful activities of August 2011 should be taken into account in determining the appropriate sentence and that failure to do so would offend the sentencing principle of parity. [ 77 ] I respectfully disagree. Parity of sentencing means that like offenders who commit like offences should receive like sentences.

It does not cloak the court with some means by which it could consider the Crown's exercise of its charging discretion. (iii) Ability to Pay [ 78 ] With regard to the issue of Pasco's ability to pay, evidence was tendered at the sentencing hearing to prove that Seven Seas purchased the company in 2013 for a share purchase price which is said to have been based on Pasco's 2011 and 2012 revenues. The evidence on sentence further reveals that Pasco has been out of operation, generating no revenues for a number of years.

Pasco says that the company has only one asset, and that that is a corporate loan from Seven Seas, which would, in effect, mean that the innocent third party owner of Pasco, as it now stands, would pay any financial penalty. [ 79 ] The Crown points to Pasco's financial statement that shows retained earnings in 2011 of over $1.25 million, and in 2012 over $1.75 million, with gross revenues for both years of over $30 million. The Crown says that a change in ownership of shares is irrelevant to a consideration of the offender's ability to pay.

Crown counsel says that Pasco has the ability to pay the monetary penalty sought herein, and that any related issue can be addressed by a longer time period to pay, if needed. [ 80 ] I am satisfied that the corporate decision made by Seven Seas to not maintain Pasco's active operation is not an appropriate mitigating consideration here. (iv) Conclusions Issue 1 : [ 81 ] The principles set out in sections 718 through 718.2 of the Code apply here, and case law establishes that a “special approach” must be taken, given that this case is about environmental protection offences, which are designed to protect and preserve a valuable resource. [ 82 ] The offender's culpability is a significant factor in determining the appropriate sentence; the change in ownership of the corporate defendant, after the offence but before the charges, is of little relevance to determining the appropriate sentence of the corporate offender.

Here, culpability is at the very high end. Deterrence is a key principle to be taken into account. Creating and producing false documents to DFO is a significant aggravating factor. Actual harm has occurred to a highly valuable and environmentally sensitive stock. Potential harm has been proven with regard to management of the resource. Pasco's lack of record is mitigating. Issue 2: Is an order pursuant to

section 79.2 of the Fisheries Act available or appropriate in this case? [ 83 ] The Crown says that the bulk of a monetary penalty in this case should be by way of an order pursuant to s. 79.2(

f) of the Fisheries Act in the amount of $170,000 for fish environmental conservation, along with a fine of $1,000 for each of the five counts pursuant to s. 78(a) (for a total of $5,000). [ 84 ]

Section 79.2 of the Act is found under the heading "Offences and Punishment," and the sub heading “Orders of Court” in the Fisheries Act . Under s. 79.2 an order can be made: • prohibiting acts which may continue or repeat the offence, (subs.(a)); • requiring publication of facts of the offences, (subs.(c));

• requiring compensation, (subs. (d.)), or • performing community work service hours, (subs. (e)), among other courses of conduct. I will only refer fully to subsections (

b) and (

f) as they relate to the analysis, here: S: 79.2 Where a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing any one or more of the following prohibitions, directions or requirements: (

b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence; (

f) directing the person to pay Her Majesty an amount of money the court considers appropriate for the purpose of promoting the proper management and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat. [ 85 ]

Section 79.3 says that where a sentence is suspended, a probation order can include a s. 79.2 order. [ 86 ]

Section 79.5 provides that a court order made under s. 79.2 may be varied, on application by a person, (including the person against whom the order was made,) in a number of circumstances. [ 87 ] In its reply to Pasco's submissions, the Crown says that given the language of the subsection, a s. 79.2(

f) order must be made in addition to another fine, such as one imposed under s. 78. The Crown points to the large number of illegally harvested salmon here, bought, possessed, and sold by Pasco. They identified associated harm.

The Crown notes that even defence witnesses testified about conservation and sustainability concerns regarding the Fraser River Sockeye population. [ 88 ] While conceding that such an order could not return the killed fish to the environment, Crown counsel says it would provide a mechanism for monetary payment that serves fish habitat conservation, in accordance with the purposes of the Fisheries Act . [ 89 ] Pasco did not take the position that an order could not be made pursuant to s. 79.2, but pointed out that it was discretionary; that there were no clear principles on its application vis-à-vis apportionment between a s. 79.2(

f) order and s. 78 fine and that any such order must be subject to other sentencing considerations, including totality. [ 90 ] In Brown , supra , there was actual damage to the fish habitat in Langley, on the Browns' property. There, the Crown sought a restoration order under s. 79.2(b), quoted above, but the sentencing court had several concerns about such an order, including enforcement. In the result, the sentencing judge imposed a fine and made an order under s. 79.2(

f) requiring the offenders to pay $9,000 to Her Majesty to be used to restore fish habitat elsewhere in Langley. [ 91 ] The Crown appealed, on the bases that (1) the sentencing judge ought not to have refused to make the restoration order under s. 79.2(b), and (2) alternatively, the monetary penalty was too low. The appeal was allowed, in that the

summary conviction appeals judge increased the amount payable under s. 79.2(

f) from $9,000 to $29,000, along with a $1,000 fine imposed by the sentencing judge, for a total monetary penalty of $30,000. However, Justice Cullen did not find that the trial judge had erred in making an order under s. 79.2(f), in circumstances where the factual basis for an enforceable order under s. 79.2(

b) was unclear, ( see: R. v. Brown , 2008 BCSC 1902 at paragraph 45 .) [ 92 ] The Browns appealed the quantum of the penalty to the Court of Appeal, arguing that the increased penalty violated the totality principle, among other issues. The Court of Appeal made it clear that the principle of totality comes into play when different monetary penalties are imposed under the Fisheries Act , ( see: 2010 BCCA 255 at paragraph 17 .) However, the court did not comment adversely with regard to s. 79.2(f)'s use to order payment to Her Majesty the Queen, with regard to an area other than the immediate area affected by the Browns' unlawful conduct. Ultimately, the $30,000 penalty imposed by the

summary conviction judge was upheld. At the end of the judgment, Justice Tysoe notes that s. 79.5 of the Fisheries Act provides for a variation application with regard to a s. 79.2(

f) order, where circumstances change, (see: paragraph 22.) [ 93 ] In R. v. Rio Tinto Alcan , 2017 BCSC 1144 , Justice Affleck considered a

summary conviction and sentence appeal that included an order under s. 79.2(

f) of the Fisheries Act with regard to an offence that resulted in an unquantified amount of damage to the fishery population, (see: paragraph 60.) At paragraph 69, he stated: [69] Once the sentencing judge found RTA was faced with an emergency which it attempted to manage, however inadequately, but damage to the fish and fish habitat of the Kemano River was slight, and the offences charged were of a low order of culpability, there was no basis on the authorities to require a payment to the Crown beyond the fines imposed .

The sentence appeal must be allowed and the obligation to pay the Crown $125,000 set aside. (Emphasis added) [ 94 ] In that case, the relevant factors required to make a s. 79.2(

f) order include (1) damage to fish, (2) damage to fish habitat, and (3) more than a low degree culpability, as well as consideration of sentence totality. [ 95 ] In R. v. Schafhauser , supra , Justice Punnett considered an appeal from a sentence on two Fisheries Act offences, including a fine of $500 and a "creative sentence order" of $4,500 per count, pursuant to s. 79.2(

f) of the Act , for a total of $10,000. Mr. Schafhauser had committed offences of unlawful fishing, which did not appear to have adversely impacted the fish habitat or environment, (apart from the obvious harm of killing the fish and removing them from the ecosystem.) [ 96 ] The main issue on appeal was whether the sentence was excessive. There was no issue taken with regard to how the sentencing judge structured the sentence, relying on both s. 78 and s. 79.2(

f) of the Act . With regard to that latter section, Justice Punnett stated at paragraph 16:

[16] For the type of offences committed, the Fisheries Act provides for a maximum of $100,000 per incident. He received a fine of $500 on each count. In addition to a fine imposed, the court chose to make orders under s. 79.2 of the Fisheries Act and, specifically, the court may order payment for the purpose of promoting the proper management and control of fisheries or fish habitat for the conservation and protection of fish or fish habitat.

These provisions, often known as the creative sentence provisions, allow a sentencing judge more freedom crafting a sentence that can be both a deterrent to an offender and beneficial to the local fish management. [ 97 ] Given Schafhauser , supra , particularly, it appears that an order pursuant to s. 79.2(

f) may be within my discretion in this case, notwithstanding the absence of proof of damage to actual habitat. [ 98 ] I am cautious about taking such approach in this case, where I am considering only the appropriate punishment for the offence and the offender:

section 79.2 provides that such an order is "in addition to any punishment imposed." Any s. 79.2(

f) order made here would not be “in addition to any punishment imposed,” it would be a very significant component of that monetary punishment. [ 99 ] I note that in R. v. Gwaii Wood Products Limited , 2017 BCPC 6 , Judge Brecknell describes subsection 79.2(

f) as authorizing a "rehabilitative" order, and stating that it requires an offender to contribute to the restoration of habitat similar to what is damaged, (see: paragraphs 89 and 93.) The case before him involved actual destruction to fish habitat. [ 100 ] That characterization in Gwaii of the provision as rehabilitative is consistent with the legislation's reference to such an order being part of a probation order, (see: s. 79.3.) It is also consistent with the notion that a s. 79.2 order would be in addition to any punishment imposed, as set out in the section.

From that language, I am led to conclude that the safer course is for me to make a punishment order under s. 78. I note that Pasco has urged that it does not need rehabilitation, as the directing minds of the company have changed since these offences were committed.

The character letters filed on sentencing, in relation to the current owners of Pasco, support this position. [ 101 ] While I have found actual harm in the form of nearly 30,000 fish removed from the waters of the Johnstone Strait, I have not found, to the evidentiary standard necessary on sentencing, that the Crown has proved damage to the environment or habitat. In these circumstances and having regard to Justice Affleck's comments in Rio Tinto , mentioned above, as well as the language of s. 79.2, I am inclined to the conclusion that this is not likely a case where a s. 79.2(

f) order is appropriate. [ 102 ] However, the most significant factor in my consideration of s. 79.2(

f) is the desirability in this case for certainty of sentence, and how that may dovetail with the sentencing objective of general deterrence:

Section 79.2 injects an element of uncertainty, unchecked by appeal limitation periods and undefined by principles apposite sentence appeals, (see:

section 79.5.) [ 103 ] The brazenness of Pasco's acts in 2011 means that its competitors and the test fishers; the off-loaders; the truckers -- all operating in a highly-regulated and tight-knit industry -- were aware of Pasco's behaviour. I am satisfied that this is a situation where general deterrence may actually be achieved by the sentencing process. To leave the monetary penalty open to further application for reduction (by operation of s. 79.5) would, in my respectful view, not be appropriate. In the result, while I may have the jurisdiction to make an order under s. 79.2(

f) of the Fisheries Act , I decline to exercise such discretion, preferring that any monetary penalty be by way of a fine under s. 78(a), such that the sentence is clear and not subject to any potential application for reduction, absent a sentence appeal. Issue 3: What is the proper

interpretation of "monetary benefit" in s. 79? [ 104 ]

Section 79 reads as follows: Where a person is convicted of an offence under this Act and the court is satisfied that as a result of committing the offence the person acquired monetary benefits or monetary benefits accrued to the person, the court may, notwithstanding the maximum amount of any fine that may otherwise be imposed under this Act, order the person to pay an additional fine in an amount equal to the court's finding of the amount of those monetary benefits. [ 105 ] The Crown says that there should be an additional fine in the amount of the gross revenue generated by the sale of these fish, just under $290,000.

The Crown says that if there was reliable evidence of what Pasco had paid for the fish, that would be an appropriate deduction for s. 79 purposes, but that there is no such reliable evidence, and thus the gross revenue is the amount that should be ordered, by way of s. 79. The Crown relies on Terroco , supra , where the Alberta Court of Appeal stated: “There should be no possibility of financial gain as a result of a breach or a series of breaches,” (para. 57), as well as upon Gwaii , supra; R. v. H & H Fisheries Limited , 2014 NSPC 61 and R. v.

Henneberry , from the Nova Scotia Provincial Court up to the Nova Scotia Court of Appeal, ( 2006 NSPC 26 ; 2009 NSSC 95 ; 2009 NSCA 112 ). [ 106 ] Pasco, on the other hand, says the manner in which a sentencing court applies s. 79 is discretionary, relying on R. v. Thompson , 2017 BCPC 351 , (at paragraph 50 ,) and says that in general the net benefit is what is appropriate, relying on R. v. Oates , 2004 NLCA 6 . Pasco says that in this case, that ought to result in the imposition of a fine in the amount of the net monetary benefit realized by Pasco in relation to the sale of the unlawful fish.

Pasco says that to impose the gross benefit would be an overemphasis on deterrence without significant consideration of the other sentencing principles, particularly proportionality and totality, given the facts of this case. [ 107 ] At the sentence hearing, Pasco filed copies of three cheques related to expenses said to have been incurred by Pasco during the purchase and sale transactions at issue here: (

i) a cheque dated August 12, 2011, to the Port Hardy transport company, in the amount of $25,080; (ii) a cheque of the same date, to the Port Hardy off-loaders, in the amount of $20,817, and (iii) a cheque also on that date, to Precision Processing International Inc., in the amount of $40,497. Pasco says that these amounts ought to properly be deducted from any s. 79 additional fine that might be ordered here. [ 108 ] Crown counsel reminded me of the trial evidence that Precision and Pasco were closely connected companies, sharing Mr.

Ogilvie as a director and owner and operated at Pasco's Richmond location. [ 109 ] Pasco also tendered copies of documents said to prove that Pasco paid Stan Theologus, an individual instrumental in the 2011 scheme, tens of thousands of dollars, which also should be deducted in the calculation of an appropriate additional fine under s. 79. I

note that at trial I concluded that Pasco and Stan Theologus' dealings were less than legitimate. The amount claimed by Pasco to havebeen paid to Mr. Theologus in relation to these illicit transactions is not based on reliable evidence. [110] These asserted payments to Mr.

Theologus provide a practical illustration of the downside of using the net benefit analysis to theapplication of s. 79 in this case: The net approach requires a sentencing judge to consider the authenticity and appropriateness of aproposed expense in considering its deduction as a legitimate business expense, from proceeds of what is an unlawful business. [111] As well, any monies not disgorged have the practical effect of offsetting any s. 78 fine. The monies spent by Pasco, now soughtto be deducted, were incurred in the execution of an intended unlawful pursuit, motivated by greed.

From a public policy viewpoint,such an approach does not seem persuasive, given the facts at bar. [112] I note that in Thompson, supra, Flewellyn PCJ was dealing with a case of carelessness, (see: paragraph 53,) following a guiltyplea, in which she deducted the costs incurred by the offender in obtaining the fish.

Pasco notes that she was dealing with an individual,not a corporation in which the owner had no moral culpability. [113] However, she also states at paragraph 52: [52] Whether or not an offender should be deprived of the entire benefit of an illegal catch or whether some other assessment of themonetary benefit accruing to the offender should be considered must be left to the sentencing judge and the circumstances of theparticular case.

In some situations the conduct may require a more significant penalty to achieve deterrence and in those circumstances itmay be appropriate to use gross sales, or in other words, the entire benefit of the legal [sic] catch, as the measurement of monetarybenefit. And at paragraph 54, in part: Had I found that his conduct was more flagrant or an intentional flouting of the law, I may well have imposed a fine under

section 79equal to the full amount of his illegal catch. [114] A few things are clear from the language of the

section and its heading, "additional fine;" first, it is punitive or “penal”, to useJudge Brecknell's language from Gwaii, supra. As well, it is available even where the maximum fine has been imposed under s. 78. Thus, where the offender and offence warrant it, a fine of $100,000 could be ordered pursuant to s. 78(

a) of the Act, and a further finecould be ordered under s. 79, to prevent the offender from benefiting from the unlawful activities, which would have the practical effectof reducing the s. 78 fine. This is consistent with deterrence being a primary consideration under the Fisheries Act. Conclusion with regard to Issue 3 [115] I am of the view that Pasco is correct that whether the appropriate additional penalty, if any, should be net or gross isdiscretionary.

I am also of the view that any order made pursuant to s. 79 must be considered in relation to all penalties and other ordersmade under the Fisheries Act, in any given case. That is to say that the principle of totality is at play and a significant factor to considerin assessing how to exercise this discretion. [116] With regard to its application here, Pasco took a calculated risk by participating in unlawful activity designed to generatemoney. The culpability is at its highest, and Pasco's conduct is a flagrant and intended flouting of the law.

While, ultimately,considerations of totality must apply amongst the other sentencing principles, at this point in the analysis the appropriate application of s.79, here, is on a gross benefit basis. Issue 4: Delay [117] Turning to delay, Pasco says that the delay in this case is a mitigating factor on sentence, resulting in innocent people beingsentenced for the wrongdoing of others. Crown says that the delay between 2011 offence dates and sentencing is not significantlymitigating. [118] Pasco relies on R. v.

Spencer, in support of its position but has filed no transcripts or identified just whatpart of the period since the date of the offences to the date of sentencing forms the factual underpinning for the mitigation. [119] Spencer is a drug importing case involving the airport arrest of a courier bringing cocaine into Canada. Spencer was anindividual with sympathetic characteristics. At paragraph 37 of the decision, the court concludes that a delay of 31 months from theoffence to sentencing was a significant period, properly taken into account, at Ms. Spencer's sentencing.

The case does not appear tohave been followed. [120] The court in Spencer cites R. v. Bosley, (ONCA), and R. v. L.W., 1996 O.J. No. 3931 CA. Both of these casesinvolve natural people, not companies. In Bosley, 17 months passed between date of conviction and sentence. The court observes thatwhere excessive delay causes prolonged uncertainty for the appellant, but does not reach constitutional limits it can be taken intoconsideration as a factor in mitigation of sentence, citing R. v.

Cooper (No. 2), (ONCA). [121] With regard to the circumstances here, the Fisheries Act has a lengthy statutory limitation period, five years. The charges in thiscase were laid within that period, albeit not long before it expired, but within the time permitted by Parliament. I was asked to find abreach of the Charter, based largely on delay, but did not find such a breach, on the evidence. See R. v. Pasco, 2017 BCPC 453. Pascosays that a result of the Crown's delay in charging Pasco is that guiltless people are now being sentenced.

I will just pause to note thatthe share purchase of Pasco occurred in March 2013, clearly well within the five-year Fisheries Act limitation period. The purchaser,based on the affidavit evidence before me, has been in this highly-regulated industry for decades and must be presumed to know the law,including that charges for fishing offences can be laid for up to five years. The purchase agreement had been entered into evidence at thesentencing hearing. It appears there were lawyers involved.

[122] While I am sympathetic to the current owners, I cannot see a causal link between the Crown's taking as long as it did to lay thecharges and where the owners of Pasco now find themselves. The situation would arguably be the same had the Crown approved thecharges and the prosecution proceeded any time after the date of the share purchase agreement, which occurred less than two years fromthe date of Pasco's wrongdoing in August 2011. [123] The trial began on June 26, 2017, and continued piecemeal for the next nine months, over the course of 21 days, withsubmissions ending on March 23, 2018.

Judgment was rendered on April 20, 2018. While I do not have affidavit evidence in front ofme in this regard, I do recall dates set for trial that had many hours eroded by this matter being scheduled in courtrooms with other (oftenin-custody) pressing matters that had to take priority. Some delay was occasioned by that, here. [124] On April 24, 2018, July 3, 2018 was set for the sentencing hearing. On July 3rd, Pasco requested and was granted anadjournment. The defendant explicitly waived the resulting delay. Sentencing submissions were ultimately re-set for September 28,2018.

Submissions took a full day, but did not conclude. A second date for sentencing submissions was set, November 29, 2018. Oralsubmissions concluded, with counsel permitted to file supplemental submissions with regard to the impact of Seven Seas' purchase ofPasco as a mitigating factor, by December 3, 2018. January 21, 2019 was set for the sentencing decision. On January 18, 2019, Pasco'scounsel forwarded a further case on the impact of the sale purchase agreement, although that did not greatly impact the fact that I wasnot prepared to give my sentencing decision on January 21st.

While the parties appeared, expecting the sentencing decision on that date,I had to adjourn it briefly, for further thought.

Hence the sentencing date of February 4, 2019. [125] Some delay after charges was occasioned by defence adjournment requests; some was due to the lack of trial time available tothis case as a result of inadequate judicial resources at the Richmond Provincial Courthouse; some delay arose from my need for moretime for these reasons; close to the full five-year period afforded the Crown under the legislation was taken up. [126] There is no doubt that being sentenced seven and a half years after committing an offence is a long time.

That said, there issome logic to the Crown's argument that Pasco has had the benefit of the $298,000 illegal revenue, by which to generate income, for thepast seven years. As well, in the context of Charter litigation, it is clear that corporations do not typically suffer prejudice associatedwith delay, such as anxiety, stigma, or restrictions on liberty; (see: R. v. CIP, (SCC), [1992] 1 S.C.R. 843, at paragraph49.) [127] I am satisfied that in appropriate circumstances delay can be a mitigating factor on sentence.

In this case, with a corporateaccused, these reasons for mitigation -- those personal stressors experienced by a human being attendant on uncertainty of futureoutcome, are absent. On the whole, I agree with the Crown that mitigation of sentence based on delay, in this case, if warranted at all, iswarranted to only a small degree and is based on the delay occasioned by the court's inability to accommodate this case, when it wasscheduled to proceed.

Issue 5: Does the rule against multiple convictions apply to any of the counts on this information? [128] Pasco says that the charge of unlawfully possessing fish caught during a closed time, set out in Count 3, is an included offence ofCounts 2 and 5 applying R. v. Kienapple, 1974, CANLII 14, the leading case on the rule against multiple conviction. [129] Pasco says, as well, that applying that principle, a conviction cannot be registered in regard to both Counts 1 and 2, because thedelict of the offences is the same: the contravention of the Fisheries Act or regulations.

Pasco says that the means by whichcontravention occurred is a mere particular of the offence. So, too, with Counts 4 and 5, quoting from Kienapple: "If there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence[s] charged in asecond count, the situation invites application of a rule against multiple convictions." [130] Here, Pasco says that once the charge of contravening the Act or regulation is proved, Kienapple applies, because the charges inCounts 1 and 2 and in Counts 4 and 5: (

a) arise out of the same acts, (

b) arise as the result of a contravention of the Act or regulations, (

c) once the contravention is established, it is immaterial what the details of the second alleged contravention is, and (

d) it is impossible to have a licence that permits fish to be caught in a closed time, otherwise, having a closed time would beirrelevant. A licence permits the fishing at a time specified in the licence, and therefore having the licence is one and the same as fishingat a closed time. [131] Pasco says that in R. v.

Lasante, 2018 BCPC 45, Judge Mrozinski applied such an approach with regard to charges relating to thedeposit of deleterious waste (see paragraphs 129 through 131 and 159) and says that I should do the same. [132] Further, that if the possession of a specific item is included in the act that is otherwise charged -- in this case, purchasing orselling the fish -- Kienapple applies to the possession charge. On this point, Pasco relies on R. v.

White, 2006 NLCA 71, a decisionwherein the court concluded that one charge of, "possession of fish and one charge of fishing for salmon during closed time offended theKienapple principle…" [133] The Crown says that each count in the information here contains distinguishing elements, such that the principle againstmultiple convictions for the same delict does not apply.

Consequently, convictions for all five charges should be entered and theoffender sentenced on each of those charges. [134] With regard to Pasco's argument that the possession charge in Count 3 should be stayed, the Crown says that the charge ofunlawfully possessing the fish caught during a closed time is different from and not subsumed by the four other charges on the

information. The Crown says that R. v. Armstrong, 2010 BCSC 1041, establishes that where there are additional distinguishable actsfrom mere possession, another offence sustains the Kienapple analysis. [135] Further, that where offences do not encompass the identical time period, apart from slight variance, the rule against multipleconvictions does not apply, citing R. v. Côté, (SCC), [1975] 1 S.C.R. 303.

Here, the Crown says, the time period inCount 3 is not the same as the time period in the other counts. [136] With regard to Pasco's submissions that Count 1 or 2 should be stayed, the Crown says that it is an element of the offencecharged in Count 1 that the fish bought were not caught under the authority of a licence.

In such a charge, says the Crown, theunderlying facts are that correct documentation was not secured, which resulted in DFO being deprived of the means by which toregulate quantity and priority of access to the fishery. [137] The Crown says that it is a separate and distinct element of the offence charged in Count 2, that the fish were caught in a closedarea.

Here, the underlying act is fishing within a particular space, which prohibition addresses a different aspect of the conservationscheme, which is to allow DFO to protect fish in certain spaces. [138] Crown says that a person who makes a single purchase of fish that is caught unlawfully for two reasons under the statute andregulations commits two separate offences, such that the charges survive the application of the principle against multiple convictions. The Crown cites, in addition to Armstrong, supra, R. v.

Steer, unreported, Port Alberni 40679-1 BCPC, in support. [139] Finally, the Crown says that even if Pasco is correct and three counts on the information should be stayed, the resulting twoconvictions result in maximum fines, totalling $200,000.

The Crown says that even here the maximum fines are lower than the totalsought as appropriate in these circumstances. [140] With regard to Count 3, I agree with the Crown that Armstrong, supra, clearly sets out that possessing fish is different from otheroffences which have as part of their commission possession of the same fish: [66] Possessing fish is a different thing from fishing or setting gear, because not every act of fishing or possessing gear results in thepossession of fish." (I believe this should read "setting gear.") [141] White, supra, relied upon by Pasco in support of the argument that possession is an included offence, was considered inArmstrong, supra, by Justice Grey, who stated at paragraph 67: [67] In R. v.

White, [citation given], the Newfoundland and Labrador Court of Appeal entered a stay on the Kienapple principle of acharge of unlawfully fishing during a closed time because there was a conviction for unlawfully possessing salmon. However, in thatcase, the act of fishing was the act of removing salmon from the net, which was also the basis of the charge of possessing salmon. Theevidence did not establish that Mr. White placed the net or knew where it was when he went to the beach.

Therefore, on the facts inWhite, there was no additional distinguishing element for the charge that was stayed. [142] Thus, in my respectful view, where there are additional distinguishing elements between two charges, it is inappropriate to stayone based on the rule against multiple convictions. [143] In this case, as noted by the Crown, Pasco purchased the fish through a series of phone calls and business arrangements, largelyfrom Richmond, over August 5th through 8th, 2011. [144] Pasco possessed the fish through a number of additional acts, including directing its off-load, transporting and directing itstransport from Port Hardy to Richmond on August 6th, processing the fish from August 6th through 10th, 2011, and shipping it tocustomers over the same period.

Pasco sold it by means of telephone calls and emails. [145] Given the facts here and applying the reasoning in Kienapple and Armstrong, supra, I am satisfied that Count 3 does not attractthe application of the rule against multiple convictions.

I also agree with the Crown that given Côté, supra, and given that the timeperiods of possession in Count 3 are different from the time periods that Pasco is charged with buying and selling the fish, the Kienappleprinciple cannot apply. [146] Turning next to a consideration of Counts 1 and 2 and Counts 4 and 5, both pairs of charges cover the identical time period, andthe acts committed by Pasco in the commission of Counts 1 and 2 are the same, as are the acts committed by Pasco in the commission ofCounts 4 and 5. [147] In my respectful view, this is different from the facts in Steer, supra, and Armstrong, supra.

In Steer, the offender was chargedthat he did “unlawfully fish without a licence” and “did unlawfully fish during a closed time.” The trial judge held that Kienapple didnot apply to the two charges, as he concluded that they were distinguishable: "One requires a licence to fish for cucumbers. The secondrequires him to fish during that time when the season is open…" (paragraph 6.) [148] Similarly, in Armstrong, supra, the Supreme Court judge reviewed the differences between the elements in the charge relating toMr.

Armstrong’s unlawfully “setting gear”, (referred to in Count 1,) and in a charge of unlawfully “fishing”, (referred to in Count 2.) She concludes that the offenders engaged in different conduct in setting gear from the conduct they engaged in in fishing; given thedifferences in the conduct, she concludes that the principle in Kienapple does not apply. (See: para’s. 69 – 72). [149] With this in mind, I turn to Counts 1 and 2.

The prohibited conduct is "unlawfully buying fish,” (Count 1,) and “unlawfullypurchasing fish,” (Count 2.) I am satisfied that the use of the words buying and purchasing, in the two charges, are interchangeable andwithout any difference in meaning. With regard to the elements in the two offences committed by Pasco, there are no differences vis-à-vis Pasco's acts: the conduct engaged in by Pasco in committing Count 1 is exactly the same as the conduct it engaged in in committing

Count 2. There is no distinction in the acts taken by Pasco in its arranging for the purchase of the fish, and the fish bought in Counts 1 and 2. [ 150 ] The only difference is the means by which the fish are said to be unlawful -- whether by operation of s. 33 of the Fisheries Act or s. 35(2) of the Fisheries (General) Regulations. [ 151 ] While a fisher such as Mr.

Steer is under a positive obligation to obtain a licence before fishing, pursuant to s. 33 of the Act , and is also under a positive obligation to only fish in an open area, pursuant to the regulations, a purchaser is under a single positive obligation to not buy unlawfully caught fish. [ 152 ] I am satisfied that the rule against multiple convictions applies to Count 1 and 2 and a judicial stay will be entered on Count 2, leaving the charge of unlawfully buying fish not caught with a licence, (Count 1,) being entered as “conviction.” [ 153 ] Similarly, and for the same reason, I am satisfied that the rule applies to Counts 4 and 5: There is no difference in the offence alleged to have been committed by Pasco in its identical acts of selling unlawful fish referred to in those counts; the difference is the means by which the unlawful fish they sold was unlawful.

A judicial stay will be entered with regard to Count 4, leaving a conviction for the charge of unlawfully selling fish caught during a closed period. [ 154 ] As a result of the foregoing, convictions will be entered with regard to Counts 1, 3, and 5. Judicial stays of proceeding will be entered with regard to Counts 2 and 4.

CONCLUSION : [ 155 ] Having regard to all of the sentencing principles and the objectives of sentencing as set out in the Criminal Code , and viewed with the special approach appropriate to an environmental protection offence prosecution, I have concluded that Pasco's culpability is at the highest end and that the change in ownership is of little moment. I have found that Pasco 's actions were driven by greed and calculated to secure its advantage over law-abiding members of the fish industry involved in the Fraser River, Johnstone Strait Sockeye run. I have found actual harm.

I have found vulnerability in relation to the fish run under consideration. All of these are seriously aggravating factors. Pasco has no record. That is mitigating. The delay in this case has a slight mitigating effect. [ 156 ] I have concluded that an order under s. 79.2(

f) is available, but decline to make an order, preferring to ensure certainty. I have also concluded that an additional fine under s. 79 is discretionary, as is the court's approach as to whether it should be based on a gross or net figure of acquired monetary benefit, but that regardless of the approach, the principle of totality must be applied. [ 157 ] I am mindful of all of the sentencing principles at play, discussed above, and I am satisfied, at the end, that deterrence, particularly general, in this case, is the paramount consideration. [ 158 ] The maximum fine permissible under s. 78(

a) with regard to the three convictions herein is $300,000. The Crown seeks a total fine of $175,000, with a disgorgement order. In my respectful view, such a fine, along with an additional fine, is appropriate and complies with the principles set out above, including totality and restraint. [ 159 ] So, with regard to Count 1, Pasco is sentenced to a $60,000 fine, pursuant to s. 78(

a) of the Fisheries Act . With regard to Count 3, a fine of $55,000, pursuant to s. 78(

a) of the Fisheries Act . Count 5, a fine of $60,000, pursuant to s. 78(

a) of the Fisheries Act . [ 160 ] The fines are higher with regard to Counts 1 and 5, as these offences engaged the unwitting involvement of other parties, the off- loaders and truckers at Port Hardy, in Count 1, and the unwitting purchasers who believed they were buying legal fish, in Count 5. [ 161 ] There will be an additional fine, pursuant to s. 79 of the Fisheries Act , in the amount of the monetary benefit acquired by Pasco, by way of the sale of the fish, in the amount of $298,131.37. This is the gross revenue proved by the evidence.

I am satisfied that using the gross approach, in this case, is appropriate, for the reasons set out above. [ 162 ] With regard to all of the cases provided by counsel, they have been considered by me, if not referred to in these reasons, and will be set out in an appendix, which will be at the end of these reasons, which will be ultimately put on the court's website, subject to editing for clarity. ____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia APPENDIX 1. R. v. Adam Clarke Company Ltd., (1982) 3 CCC 323 2. R. v. Armstrong , 2010 BCSC 1041 3. R. v.

Armstrong , 2012 BCCA 242

4. R. v. Armstrong, [2012] S.C.C.A. No. 352 5. R. v. Bosley, (1992) 18 CR 4347 (OCA) 6. R. v. Brown, 2010 BCCA 225 7. R. v. CIP, (SCC), [1992] 1 SCR 843 8. R. v. Cote, (SCC), [1975] 1 SCR 303 9. R, v, Crocker 10. R. c. Desbois, 2013 QCCA 2099 11. R. v. Gwaii Wood Products Ltd., 2017 BCPC 6 12. R. v. H & H Fisheries Ltd., 2014 NSPC 61 13. R. v. Henneberry, 2006 NSPC 26 14. R. v. Henneberry, 2009 NSSC 95 15. R. v. Henneberry, 2009 NSCA 112 16. R. v. Hollohan 1997 157 FNLD PEIR 271 17. R. v. Kienapple (SCC) 18. R. v. L.W., 2996 OJ No. 3931 (OCA) 19. R. v. Lasante et al 2018 BCPC 45 CanLII 20. Lloyd Oldford v.

Mark Oldford 2005 NLTD 38 21. R. v. Mckinnell Fishing Ltd. 2016 BCPC 466 22. R. v. Noonan, 2009 NLTD 163 23. R. v. Noringseth 2016 BCPC 183 24. R. v. Oats, 2004 NLCA 7 25. R. v. Schafhauser, 2017 BCSC 2017 26. R. v. Siggins 1960 CCC 127 27. R. v. Spencer, 28. R. v. Steer, unreported, Port Alberni, 40679-1 (BCPC) 29. R. v. Steer 2013 BCPC 323 , 2013 BCJ. No. 2763 30. R. v. Terroco Industries Ltd., 2005 ABCA 141 31. R. v. Thompson 2017 BCPC 351 32. R. v. Vukic 2017 BCPC 393 33. R. v. White 2006 NLCA 71 CanLII