R. v. Garnier Date:, 2016 BCPC 207

Citation: R. v. Garnier Date: 20160708 2016 BCPC 207 File Nos: 15793-1, 15992-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IAN JEFFREY GARNIER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE CROCKETT Counsel for the Crown: S. Simpson Counsel for the Defendant: D. Williams appearing on June 3, 2016 Places of Hearing: Courtenay and Campbell River , B.C. Dates of Hearing: June 3 and July 8, 2016 Date of Judgment: July 8, 2016

[ 1 ] On June 3, 2016, Captain Ian Jeffrey Garnier pleaded guilty to 8 Fisheries Act offences, contained on two separate informations. These are my reasons for sentence. [ 2 ] Information 15793-1 contains 5 counts, all of which occurred on September 9, 2011.

Four counts are failures to comply with terms of his Commercial Fishing Licence, specifically: Count 1 - releasing Rockfish at sea Count 2 - failing to record the discarded Rockfish in the log book Count 3 - failure to record all species caught (the same Rockfish) immediately in the logbook Count 4 - hailing out less than 8 hours prior to the commencement of fishing Count 5 - dumping fish contrary to s. 34(2) of the Fishery (General) Regulations . [ 3 ] Information 15992-1 contains 3 counts of failure to comply with a term of a Commercial Fishing Licence on November 13, 2012: Count 1 - fishing in a closed area Count 2 - failing to keep a record of all fishing activity in the logbook Count 3 - failure to record hail-out number in the logbook [ 4 ] I am treating the pleas as early guilty pleas.

Captain Garnier had different counsel prior to retaining Mr. Williams, and I’m told that once the latter was retained, he worked towards guilty pleas at an early opportunity. A trial date was set, but was cancelled in plenty of time to denotify witnesses. [ 5 ] The Crown has proceeded summarily, so s. 78 of the Fisheries Act sets out a maximum fine of $100,000 per count, or imprisonment for one year, or both, in a case of a second offence.

Captain Garnier does have prior offences under the Fisheries Act , but both Crown and Defence agree that a fine is an appropriate sentence. [ 6 ] The Crown seeks a global fine of $25,000, to be divided equally between the two informations, plus a further fine of $1522 to reflect the value of the fish caught in the closed area on November 13, 2012. The Crown is not seeking a fishing prohibition. [ 7 ] Defence’s position is that on information 15793-1 I should impose a fine of $1500 on counts 1, 2, 3 and 5, an additional $500 for count 4.

He suggests a further $1500 fine for information 15992-1, and made a more general submission that the total fines should be $4000. Information 15793-1 [ 8 ] With respect to the first information, on September 9, 2011, Captain Garnier was operating under a commercial fishing licence, trolling during the Pacific Hake Fishery near Port Hardy, British Columbia. The fishing is done by trawling a long sock-like net under the water. Fishing consists of executing several trawls, during which a net is cast behind the vessel, and as the boat moves forward, fish are caught in the net.

Under the terms of his licence, a fisher must retain and record all fish caught during each trawl. [ 9 ] To ensure compliance with licences and regulations, a ship can be monitored either by an on-board observer, or by electronic means, which includes video. A company called Archipelago provides live on-board observers, and reviews data provided by both observers and electronic means.

If Archipelago determines there has been a violation, that information is forwarded to the Department of Fisheries and Oceans for investigation. [ 10 ] On September 9, 2011, Captain Garnier’s vessel was equipped with an electronic monitoring system, to ensure the captain and crew were abiding by the terms of the licence. A video camera recorded the crew putting fish into the ship’s hold, and then discarding 2000 lbs. of fish overboard.

The estimated value of this fish is between $500 and $1000. [ 11 ] The video was described by counsel as showing Captain Garnier speaking to the crew while they were loading the fish, and, just over a minute after he is no longer visible on screen, the crew discards the remaining fish into the ocean. [ 12 ] It is not clear when the video was first reviewed by Archipelago, nor when the information was forwarded to the Department of Fisheries and Oceans, and subsequently provided to the Crown for charge approval. [ 13 ] Captain Garnier did not know that the fish had been dumped in this manner until he was charged with these offences in the fall of 2013, more than two years after the incident.

It was at that time he was provided a copy of the video as part of the Crown’s disclosure obligation. The dumping of the fish was not reported to him by the crew. He does not know why the fish were discarded. He was unable to locate one of the crew members seen in the video, and the other has no memory of the incident. [ 14 ] On September 9, 2011, Captain Garnier landed 20,000 lbs. of fish. He had not exceeded his quota and could have retained the fish that was dumped. He has no explanation for why the crew would have discarded the fish, which amounted to, as his counsel put it,

throwing money away. [ 15 ] These facts form the basis of counts 1, 2, 3, and 5 on the first information. [ 16 ] Count 4 deals with a failure by Captain Garnier to “hail out” the required eight hours prior to fishing. A term of the licence is that the captain of a vessel must contact Archipelago when he or she is ready to commence fishing: this process is known as “hailing out”. Once a ship “hails out”, a number is assigned to the ship by Archipelago.

The ship then cannot commence actual fishing for a period of eight hours after receiving its number. [ 17 ] Historically, the requirement to hail out eight hours in advance of fishing developed from the need to give Archipelago enough time to have an on-board observer at the dock prior to the ship departing. Apparently the need for the eight hour hail out rule is the subject of some controversy within the commercial fishing industry, given that there is now the capability of electronic monitoring.

Information 15992-1 [ 18 ] The facts on the second information are that on November 13, 2012, Captain Garnier was engaged in commercial fishing in a Ground Fish Fishery, in the area of Queen Charlotte Sound, British Columbia. [ 19 ] While engaging in a trawl, Captain Garnier entered into what is referred to as a tide marks closed area, which was a seasonal closure of a ground fish management area. It was closed to reduce harvesting pressures on Pacific Ocean perch fish during their spawning period. [ 20 ] The violation was discovered when the observer’s and Captain Garnier’s records were reviewed by Archipelago.

The observer recorded the distance of the intrusion, at its peak, to be 1.299 km inside the closed area; Captain Garnier’s records indicated the maximum intrusion to be 1.88 km. To put the intrusion into perspective, the tide marks closed area was 27,000 square km: 314 km across, and 87 km north to south. [ 21 ] Defence counsel filed as exhibit 4 in the sentencing a copy of a GPS map showing the entire length of the trawl, and the percentage of it that fell within the closed area.

While it is impossible to determine how many fish were caught outside and inside the closed area, it is fair to say that the majority of the trawl occurred outside the closed area. In addition, the trawl inside the closed area included pulling up and letting down the net while the vessel turned around. Less fish would have been caught during that manoeuvre as the net would not be fully open while it exited and entered the water. [ 22 ] The Crown submits that the gross value of the fish from the entire trawl was $1522.00.

Defence does not dispute that figure, but says the actual value to Captain Garnier would have been considerably less, given that the gross value of any catch has to be divided between the captain, the crew, and the owner of the boat. Captain Garnier did not own the vessel. [ 23 ] Captain Garnier states that he was unaware he had entered into the closed area. It is not disputed that the on-board observer was also unaware the ship had entered into the closed area. It is unclear why both of these individuals were not aware they had entered the area.

The purpose of observers’ records is to verify and police the accuracy of the captain’s records. The captain and the observer take coordinates off the same GPS, but do not necessarily record the exact same events at precisely the same time, depending on what else is happening on the ship. [ 24 ] It was suggested by Defence that the boundary may not have been noted on the computer navigation system. However, he acknowledged that it was Captain Garnier’s responsibility to ensure all closed areas were to be entered into that system.

Defence further stated that Captain Garnier was aware of a Rockfish Conservation Area just beyond where the vessel turned around, and that he may have mistaken this relatively recent closure as a replacement of the tide marks closed area. [ 25 ] As with the first information, Captain Garnier was unaware of the violations until almost two years after the events occurred, so he says it is difficult for him to recall the circumstances that may have led to his error.

Impact Statements [ 26 ] The Crown has filed two impact statements which provide some background as to the history and purpose of the monitoring of trawl fishing. [ 27 ] The first is a statement authored by Barry Ackerman, the Pacific Region Groundfish Trawl Coordinator for the Department of Fisheries and Oceans, dated February 7, 2013. In it he provides details about the history and monitoring of the Pacific Hake Fishery. Electronic monitoring, including video, was permitted for the Pacific Hake Fishery in response to concerns by fishers about the cost of having on-board observers.

One of the limitations of the video systems is that they are not of sufficient quality to show the species of fish being caught. By contrast, an on-board observer can make an independent estimation of the species and weight of the catch, the location, type of gear and use of the fish while on the vessel.

This information is necessary for the Department of Fisheries and Oceans to ensure the harvest of all species of fish is conducted in a sustainable manner. [ 28 ] As a result, one of the conditions of allowing electronic monitoring is that fishers must keep all bycatch on board the vessel: they are not permitted to discard unwanted fish. In addition, the entire catch must be validated upon docking. [ 29 ] There is a clear incentive for fishers to discard bycatch as it allows them more room to store the more valuable hake fish. [ 30 ] The second impact statement is also authored by Barry Ackerman.

It addresses the impact of fishing in closed areas. He notes there are incentives to for an individual to fish in this particular closed area, including higher than average catch rates, less bycatch, and reduced costs by shortening the trip length and associated food, fuel and monitoring costs, since the closed area is in closer proximity to an offload location. Doing so, of course, runs the risk of entering into the prohibited area.

Prior Violations [31] Captain Garnier does have a history of Fisheries Act violations. In February 2013 he pleaded guilty to two counts ofcontravening the Act or Regulations pursuant to s. 78(

a) of the Fisheries Act for which he was fined $250. It is unclear from the recordwhether that was the total fine, or whether that was the fine per count. Defence counsel advised one count related to fishing when hispersonal fishing licence had not yet been renewed. The second related to a halibut that was caught in a trawl and rather than throwing itback into the ocean, it was cut up and used by the crew. [32] Of more significance is the conviction dated September 19, 2013. That was an allegation of fishing in a closed area that went totrial. The defence centered on the accuracy of the two GPS units on board.

Captain Garnier was found guilty of fishing in a closed area. His record shows a fine of $1.00, but I am told by counsel that in fact he was ordered to pay the amount of $1750 pursuant to s. 79.2(f)of the Fisheries Act, which provides that the court may direct a person to pay Her Majesty an amount of money the court considersappropriate for the purpose of promoting the proper management and control of fisheries or fish habitat or the conservation andprotection of fish or fish habitat. Analysis [33] These are strict liability offences, so the only defence is due diligence.

Captain Garnier has explained that he was unaware ofthe fish being thrown overboard, and that he entered into a closed area. He did not give an explanation for failing to abide by theconditions of his licence with respect to the eight hour hail out requirement. [34] Given the extensive monitoring by on-board observers or electronic means, it is difficult to conceive of why a person woulddeliberately violate any of the conditions that form the bases of these charges.

It was only a matter of time before the violations werediscovered. [35] By pleading guilty, Captain Garnier admits that, as captain of the vessel, he was responsible for ensuring that he complied withthe terms of both his licence and the regulations. [36] Captain Garnier has further advised that since this incident he now has a policy that the crew must report to him any fish thatare discarded, and failure to do so will result in termination of employment. [37] Through his counsel I am told that Captain Garnier is 45 years old, divorced and has two children in their early twenties whomhe helps financially.

He did not own the vessel he operated. He is the hired master, and has been for over ten years. He has worked inthe commercial fishing industry for approximately 30 years, and fishes approximately 200 days per year. When not fishing, he works onshore maintaining equipment or has time off. The Law [38] I am mindful of the principles of sentence, and the balancing of factors set out in s. 718 of the Criminal Code. [39] The Crown referred me to several cases where fishers pleaded guilty or were convicted of offences under the Fisheries Act.

Iwill not refer to all of them as some are more relevant than others. [40] The most similar case to Captain Garnier’s is R. v. Martynuik 2015 BCPC 412. In that case, Mr.

Martynuik pleaded guilty totwo counts of fishing in three separate Rockfish Conservation areas, for which he was fined $3500 per count. (These are permanentlyclosed areas, as opposed to a temporarily closed area, as in Captain Garnier’s case, but both are established for the protection of species.) He was also sentenced to $3500 fines for two counts of illegally selling fish, and $1000 each for two counts of failing to properly reportan estimate of the weight and species of fish.

The total sentence was $16,000, which Judge Flewelling noted she had reduced to take intoaccount the totality principle. [41] The facts disclosed that Mr. Martynuik was unaware that he had gone into prohibited areas, and that he did not know how to fillout a log book properly. The facts do not disclose his reasons for selling fish illegally. Mr. Martynuik had no prior record. [42] The second is R. v. Steer 2013 BCPC 323 , 2013 BCPC 0323. That case involved more serious conduct by Mr. Steerthan in this case.

In particular he deliberately undertook to conceal and illegally sell fish and as a result defrauded the vessel owners andcrew of in excess of $50,000. He was sentenced to six months jail. [43] In Steer, Judge Gouge referred to the principle of deterrence as it applies in Fisheries Act cases, at paragraph 21: It has been said that the "... paramount principle of sentencing in a regulatory context such as the Fisheries Act is deterrence, bothspecific and general ...": R. vs Ivy Fisheries Ltd 2006 NSPC 26 @ paragraph 15.

I refer also to R. vs Reid 2001 BCSC 1307 @ paragraph12 and to R. vs Castro 2010 ONCA 718 @ paragraph 30. I differ with that proposition only because I think that it requires someexplanation. In my view, the primary sentencing objective in fisheries cases is the protection of the fishery. Deterrence (general andspecific) is an important and useful tool in pursuit of that objective. For that reason, it should be given greater weight than some of theother sentencing objectives and principles identified by the Criminal Code.

I acknowledge that it would be an error in principle to focussolely on deterrence to the exclusion of the other factors which the Criminal Code requires me to consider: R. vs Weaver [2002] N.B.J.No. 140 @ paragraphs 22, 23, 34. [44] Another case involving a similar offence is R. v. Kern, unreported, Port Alberni Registry, File No. 40028-3C, November 27,2007 (BCPC). In that case, Mr. Kern fished in a closed area. It is clear from the decision that Mr. Kern had several previous FisheriesAct convictions, but the extent of them is not set out in the judgment.

His most recent prior conviction resulted in a fine of $7500. Hewas fined a total of $12,500.

[45] In Kern, Judge Saunders noted the concern that offences of this nature compromise the long-term plan to replenish fish stocks.

He went on to refer to the principles of specific and general deterrence in this context, at paragraph 7: …there has to be a strong message sent out that people have an obligation to try and find out the rules and regulations before they headout as to what is an open area and what is a closed area, specifically so that these protected areas can continue to be protected. [46] Judge Saunders went on at paragraph 17: What we are dealing with is one individual who is before the court again who has chosen not to double check before going out.

If themessage goes out to other people that you can come to court and say, well, I did not know, that you will get a lesser sentence. Thatmessage could actually be quite detrimental to the purpose of general deterrence. The message should be that fishermen andfisherwomen need to make sure before they go out there that they are aware of the rules. [47] Other cases provided by the Crown emphasize that the primary focus of sentencing in cases of this nature, and regulatoryoffences in general, should be specific and general deterrence: R. v. Green, unreported, Terrace Registry 24732-1, March 24, 2005(BCPC); R. v.

Cotton Felts Ltd. (ON CA), [1982] O.J. No. 178 (C.A.) In the latter case, the court said, succinctly, atparagraph 22: Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be amere licence fee for illegal activity. [48] Finally, in R. v. Northland Properties Corp. 2014 BCPC 298, a case involving the destruction of fish habitat, Judge Harrisonset out the applicable sentencing principles as follows, at paragraphs 11 to 13: 11

Part XXIII of the Criminal Code sets out the sentencing principles generally applied in sentence proceedings and they haveapplication here.

Section 718.21 provides considerations for the sentencing of organizations. There are also particular considerations forsentencing in environmental cases. 12 In R. v. Brown [2010 BCCA 225], at paragraph 13, the British Columbia Court of Appeal identified the Alberta Court of Appealdecision of R. v.

Terroco Industries Ltd. as "the leading case on the principles of sentencing for environmental offences." Brownendorsed the proposition that sentencing principles for environmental offences require a special approach, and that the courts should befocused on 1) the extent of the defendants' culpability, 2) any prior record and past involvement with the authorities, 3) the acceptance ofresponsibility and remorse, 4) the extent of the damage and harm done and 5) the need for deterrence. 13 Deterrence is said at paragraph 14 of Brown to be a "key component" of sentences for breach of environmental protection statutes.

Our Court of Appeal also adopted the observation in Terroco that "when the maximum fines under an environmental statute are high, itis a message that low or nominal fines do not meet the goal of the statutes." Application of the Law [49] Captain Garnier has pleaded guilty at a relatively early opportunity.

This case is unlike some of the others in which theoffences were combined with more egregious types of conduct such as illegally secreting or selling fish. [50] Captain Garnier did not attempt to hide his actions - all of them were subject to either on-board monitoring by an observer, orelectronic monitoring, including video, so that their discovery was only a matter of time. I accept that he did not know that he made theerrors that led to the offences of discarding fish and fishing in a closed area, and, in fact, was unaware of the violations until charges werelaid some two years after the incidents.

He has expressed remorse. [51] While it is difficult to calculate, given the unknown quantity and species of fish discarded, and the amount attributable tofishing in the closed area, it is fair to say that if Captain Garnier gained financially from his transgressions, that gain was not significant. [52] On the other hand, Captain Garnier has prior convictions including one involving fishing in a closed area. He is required toexercise due diligence in following all of the terms of his commercial fishing licence, and the regulations.

He did not do so, and hasviolated more than one term of his licence. [53] I am mindful of the effect this type of conduct has on the ability of the Department of Fisheries and Oceans to ensure fisheriesare managed in a sustainable manner, and, of course, the impact on the fish themselves. [54] These offences require fines which will deter Captain Garnier, and others, from conducting themselves in a similar manner inthe future.

Fishing is a highly regulated industry: those who undertake it have a duty to make sure they follow the rules in order toprotect and maintain the valuable resources contained in our oceans. [55] In calculating the individual fines, I have kept in mind the totality principle in an effort to arrive at an amount that is reasonablyproportional to the total culpability of Captain Garnier, while taking into account the circumstances of each offence and his personalcircumstances. Information 15793-1:

Count 1 - $1000 Count 2 - $1000 Count 3 - $1000 Count 4 - $500 Count 5 - $1000 [ 56 ] In imposing these fines I am taking into account that counts 1, 2, 3, and 5 cover essentially the same conduct, that is, discarding fish and not recording it. Information 15992-1: Count 1 - $4500 Count 2 - $500 Count 3 - $500 [ 57 ] I have imposed a more significant fine on count 1, fishing in a closed area, primarily because this is a second offence of this nature for Captain Garnier. [ 58 ] The total of all the fines imposed is $10,000.00. BY THE COURT ______________________________ The Honourable Judge C. Crockett