R. v. Steer Date:, 2016 BCPC 318

Citation: R. v. Steer Date: 20160922 2016 BCPC 318 File No: 62232-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STAN WILLIAM STEER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY (Via Videoconference) Counsel for the Crown: L. Dumbrell Counsel for the Defendant: D. Murphy (UBC Law Student Legal Advice Program)

Place of Hearing: North Vancouver , B.C. Date of Hearing: September 22, 2016 Date of Judgment: September 22, 2016 Introduction [ 1 ] THE COURT: Stan William Steer is before me. Mr. Steer is a commercial fisher. He has been charged with a total of five counts on Information 62232-1. He has entered guilty pleas in connection with the Counts 1, 2, and 3. The court's task is to impose a sentence that is fit and appropriate in all of the circumstances. [ 2 ] Count 1 alleges that Mr. Steer, together with a gentleman by the name of Mr.

Gilmer Troy Jimmy, on or about May 12th, 2015, in the Howe Sound area, within the Province of British Columbia, were carrying on fishing under the authority of a licence issued pursuant to the Aboriginal Communal Fishing Licences Regulations. The allegation is that at that time they did unlawfully fail to comply with a condition of the licence, namely, they were to carry and did not carry proof of designation and provide it to a Fisheries Officer on request. That is contrary to s. 7 of the Aboriginal Communal Fishing Licences Regulation and thereby an offence under s. 78(

a) of the Fisheries Act . [ 3 ] On Count 2, it is an allegation that Mr. Steer, on the 22nd of May, 2015, at or near Howe Sound, while carrying on fishing under the same Aboriginal Communal Fishing Licence and pursuant to the same Aboriginal Communal Fishing Licences Regulation, did fail to comply with a condition of the licence and at that time did not carry proof of designation and provide it to a Fishery Officer upon request, again, contrary to s. 7 of the Aboriginal Communal Fishing Licences Regulation and thereby committed an offence under s. 78(

a) of the Fisheries Act . [ 4 ] The third count is that Mr. Steer, together with a Donovan Travis Frenchy, on the 29th of May, 2015, did commit essentially the same offence, that is failure to lawfully comply with a condition of the Aboriginal Communal Fishing Licence that they were operating on and, as required by the Regulation, did fail to carry with them proof of designation and provide it to a Fishery Officer upon request. The Circumstances [ 5 ] Crown has outlined the circumstances with respect to these offences. As I understand it, no dispute is taken with the material aspects of the offences.

However, some level of explanation was provided by both Mr. Steer and by his legal counsel. The circumstances as have been outlined by Crown, I accept as the facts. However, I will provide a brief

summary for the purposes of establishing the facts because they particularly relate to the sentencing considerations in this case. [ 6 ] The circumstances of the three offences all relate back to a vessel which is known as the Jess Marlene (the "Vessel"). I understand that it is owned and licenced by the Musgamagw Dzawada'enuxw First Nations (the "First Nation"). As I further understand, that First Nation, has its business offices located in Campbell River, British Columbia.

That First Nation is a relatively small First Nations band and their traditional territories, again as I understand it, are located on Gilford Island, British Columbia. That is Northeast of Port Hardy on Vancouver Island. [ 7 ] The Vessel was rented through the auspices of an organization, or a company, known as Pacific Boat Brokers. The Vessel was taken over by Mr. Steer, as the master with the required Aboriginal Communal Fishing Licence held by the First Nation in place. However, what was not in place was a letter of designation as required under the Regulations indicating that Mr.

Steer was so designated by the First Nation in order to conduct fishing under their Aboriginal Communal Fishing Licence. [ 8 ] The circumstances fairly indicate that finally such a letter of designation was obtained by Mr. Steer on May 30, 2015. However, it does not appear that a prior letter of designation had been formerly issued by the First Nation in favour of Mr. Steer. [ 9 ] The circumstances also before me indicate that Mr.

Steer as master of the Vessel was stopped on three separate occasions, May 12th of 2015, May 22nd, 2015, and May 29th, 2015, during which time, he was engaged in the commercial prawn opening in the Howe Sound area. It is common ground that that prawning season is relatively short in duration; as I understand it is something in the nature of about a six-week opening. It is during that period of time that the spot prawns are available to commercial harvesters. [ 10 ] On the first occasion, Fisheries Officers intercepted and boarded the Vessel under the control of Mr.

Steer and asked for proof of his designation and other licencing documentation. I understand all was in order, but what was not produced was the required proof of the designation. Mr. Steer was then told at that time by Fisheries Officers that it was a necessity and he was issued a ticket and an appearance notice with respect to that particular violation. [ 11 ] The Fisheries Officers once again intercepted the same Vessel under the control of Mr. Steer on May 22nd, 2015. A similar exchange took place at that time and it was determined that again Mr.

Steer was not in possession of any sort of designation, although he did indicate that he was of a belief that he had such a designation. [ 12 ] A third offence occurred on May 29, 2015. Again, the Fisheries Officers intercepted the same Vessel that Mr. Steer controlled and, once again, he was unable to produce the designation. [ 13 ] As I understand from the undisputed circumstances, the designation was finally provided in written form by way of an email and that was received and delivered to Fisheries officials the day following, being May 30, 2015.

It was apparently sent by the fisheries manager of the First Nations' licence holder.

[ 14 ] As a result of the last interception of the Vessel, it was noted by the Fisheries Officers that there was a catch aboard of spot prawns. As it turns out, that catch had been apparently contracted for by an entity known as Golden Grove Marketing. The Vessel was escorted in to dock, at which time, discussions took place between the buyer and the Fisheries Officers. Arrangements were made to send the proceeds of that particular catch from Golden Grove Marketing in the amount of $1,122.80 payable to the Receiver General and those funds were received on May 29, 2015.

Crown’s Sentencing Position [ 15 ] The sentencing position advanced by Crown is as follows: with respect to the first offence occurring and what is described under Count 1, there should be a fine of $200; on the Count 2 offence, there should be a fine of $400; and on the Count 3 offence, there should be a fine of $800. In addition to that, pursuant to s. 72 of the Fisheries Act , Crown is seeking forfeiture of the proceeds from Golden Grove Marketing Ltd. of $1,122.80. Defence's Sentencing Position [ 16 ] The position advanced on behalf of Mr.

Steer is that there should be no fines payable with respect to these particular offences and rather the sum total of the penalty should be the amount forfeited from the catch that was seized at the time of the events on Count Number 3. Circumstances of the Offender [ 17 ] Mr. Steer is a very seasoned and experienced commercial fisher. I am told that he has something in the nature of over 30 years of experience in commercial fishing. He has also done that on a seasonal basis. Family members including his two adult sons, are commercial fishers.

I understand that he is a person who has been active within his community in terms of volunteering. [ 18 ] Unfortunately, he has a past record of violations that is being alleged and, as I understand it, not denied. That includes fines that were imposed upon him. Those fines date back to June of 2006. One was a breach of the Fisheries Act regarding fish preparation for which he received a fine of $500. Then there was a failure to comply with licencing regulations which at the same time resulted in a sentence and a fine of $500 for a total of $1,000 in fines.

I am given to understand that those fines were actually paid by June of 2007. [ 19 ] The next matters that brought Mr. Steer before the courts as it relates to the fishing industry are matters out of Masset in Haida Gwaii. Those offences date back to 2010 and were subject to court disposition on December 11th of 2013. [ 20 ] I have before me a copy of the reasons for sentence of the Honourable Judge H.J. Siedemann III. Those reasons indicate that Mr. Steer had committed the offence of placing his traps in an illegal area that is in an area at a time when fishing in the area was illegal.

As it turns out that was during a crab fishery. From the transcript of reasons I understand there appears to have been a joint submission made to Judge Siedemann at the time of sentencing. The court's disposition of the matter was the imposition of a $20,000 fine and that very substantial fine was to be payable by way of installments such that Mr. Steer would be making installment payments each in the amount of $4,000 commencing December 31st of 2014. According to the information before me, only a total of $5,000 has been paid by Mr.

Steer in connection with that fine, leaving a balance outstanding on the fine in the amount of $15,000. [ 21 ] Based on the further circumstances that are before me, I understand from Crown that with respect to the other individuals who were deckhands on the Vessel under the control of Mr. Steer, that Mr. Jimmy was fined a total of $150 on Count 1 and Mr. Frenchy was fined the same amount on Count Number 3. Hence, the fine amounts that are being proposed by Crown with respect to Mr. Steer are substantially more than those particular amounts.

Aggravating and Mitigating Circumstances [ 22 ] Crown does indicate that from a mitigation perspective that Mr. Steer was cooperative with the Fisheries Officers on the occasions of his interactions with them that give rise to these charges. He was also compliant with them. There were no issues with respect to boarding of the Vessel and it appears that his other requirements under the licence and under the Aboriginal Communal Fishing Licences Regulations and under Fisheries Act were all in good order. [ 23 ] There is also the mitigating factor that he has entered a guilty plea with respect to the three offences.

However, that guilty plea came about a week prior to trial. [ 24 ] From a further mitigating aspect, the position is advanced on behalf of the defence that Mr. Steer is certainly remorseful for his failure to comply with the designation requirement. He understands his responsibilities as a commercial fisher to be in compliance; but by way of explanation, he says that a significant amount of reliance was being placed upon the boat broker who had offered assurances to him about regulatory licencing compliance. Furthermore, it is Mr.

Steer's direct submission to me that his attempts to contact the First Nation whose Vessel he was operating proved very difficult owing to what he understood to be a death within that First Nations community which then restricted the engagement of the First Nations community to provide him with the letter of designation. [ 25 ] From an aggravating perspective, it seems to me that Crown is pointing to the fact that there have been three separate offences during a very short period of time from the 12th of May, 2015, to the 29th day of May, 2015, in connection with the non-compliance. [ 26 ] Although not an aggravating factor, it is certainly relevant that there has been failure by Mr.

Steer to abide by and pay previous fine amounts that have been imposed upon him as a result of his previous breaches under the Fisheries Act and its various sets of Regulations. Legal Framework [ 27 ] The sections of the Regulations which are applicable to this particular matter are, first of all, s. 7 of the Aboriginal Communal Fishing Licences Regulation.

Section 7 of that particular Regulation reads as follows, under the heading, "Prohibitions,":

No person carrying on fishing or any related activity under the authority of a licence shall contravene or fail to comply with any conditionof the licence. [28] I understand from the submissions that no issue is taken that there was required to be in place during the periods of the offencesan actual designation from the holder of the Aboriginal Communal Fishing Licence and that that designation should have named Mr.Steer. [29] The second relevant piece of legislation that covers this matter is under the Fisheries Act and, in particular, s.

Section 78reads 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 thousanddollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term notexceeding one year, or to both; or (

b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequentoffence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. [30]

Section 78.1 provides: Where any contravention of this Act or the regulations is committed or continued on more than one day, it constitutes a separate offencefor each day on which the contravention is committed or continued. [31] The next provision which is relevant is under s. 72(1) of the Fisheries Act which reads as follows: 72

(1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order thatany thing seized under this Act by means of or in relation to which the offence was committed, or any proceeds realized from itsdisposition, be forfeited to Her Majesty.

(2) Where a person is convicted of an offence under this Act that relates to fish seized pursuant to paragraph 51(a), the court shall, inaddition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.

(3) Where a person is charged with an offence under this Act that relates to fish seized pursuant to paragraph 51(

a) and the person isacquitted but it is proved that the fish was caught in contravention of this Act or the regulations, the court may order that the fish, or anyproceeds realized from its disposition, be forfeited to Her Majesty. Analysis [32] It has been held by this court and by other courts that the Fisheries Act and its Regulations statutorily create public welfareoffences. Often, the case of R. v. Cotton Felts Ltd., (ON CA), [1982] O.J.

No. 178, being a decision of the OntarioCourt of Appeal, is cited in support of the proposition that such public welfare offences range from safety and consumer protection toecological conservation and are accepted as essential to public interest to ensure standards of conduct, performance, or reliability to makelife tolerable for all (see paragraph 19). [33] In this case, the Crown is seeking fines which are aimed at offering a level of deterrence, both general and specific, for Mr.Steer.

At paragraph 23 of the Cotton Felts decision, it is made clear that deterrence is not only to be taken in its usual negativeconnotation of achieving compliance by threat of punishment, but rather to deterrence in a more positive aspect and that positive aspectis indicated to be that as set out in Cotton Felts approving R. v. Roussy, [1977] O.J. No. 1208. Roussy is a case involving a drivingoffence, but the apposite

section reads as follows, and I quote: But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the termdeterrent in its widest sense. A sentence by emphasizing community disapproval of

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

an act. [34] At the paragraph 23, the Court of Appeal in Cotton Felts concluded by saying, and I quote: This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of oursociety for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare ofthe public. [35] In this particular situation, the matters which are of particular concern to me are that Mr.

Steer was continuously failing tocomply with the terms of the Aboriginal Communal Fishing Licences Regulation and specifically on three separate occasions betweenMay 12th, 2015, and May 29th, 2015. His failure to comply with those types requirements under operative license and under theRegulations is clearly a matter of concern, especially when it involves somebody with the broad range of experience of Mr. Steer. [36] Having regard to the sentencing position being advanced by Crown, I am of the view that that is a fit sentence in thesecircumstances.

If I were to simply accede to the defence position that a forfeiture of the cash arising out of the offence on the third countwas sufficient, it does not send the necessary message either to Mr. Steer and other fishers about their obligation to ensure that each is incompliance in a proper and full way and it also sends an inappropriate message to others engaged in this highly regulated industry thatsomething less than full compliance is to be accepted or at least excused by way of only a forfeiture of the catch. Therefore, I am of theview that the sentences suggested by Crown are, in this situation, appropriate.

Disposition [ 37 ] Accordingly, on the first count, there will be the suggested fine of $200; on the second count, there will be the suggested fine of $400; and on the third count, the suggested fine of $800 will be applicable. [ 38 ] I will also make the forfeiture order which I understand is not being contested and that the amount of $1,122.80 derived from Golden Grove Marketing LLC and paid to the Receiver General on May 29, 2015, will be forfeited. That will be separate and apart from the fines that I have imposed. [ 39 ] There are no victim fine surcharges that apply with respect to these matters.

However, I am open to submissions with respect to the time to pay those particular fines. Are there any submissions in that regard? [SUBMISSIONS RE TIME TO PAY FINES] [ 40 ] THE COURT: All right. I will then permit the fines to be paid in their sum total on or before June 30th, 2017. [ 41 ] MS. DUMBRELL: Thank you, Your Honour. [ 42 ] MR. MURPHY: Thank you, Your Honour. [ 43 ] THE COURT: Then that leaves me to sign the form of the order that was sent over. I will do that. [ 44 ] MS.

DUMBRELL: Thank you. [ 45 ] THE COURT: And I will ensure that that is faxed back by the registry to the North Vancouver Registry. [ 46 ] MS. DUMBRELL: Thank you very much, Your Honour. [ 47 ] THE COURT: Pardon me? [ 48 ] MS. DUMBRELL: Sorry, Crown enters a stay of proceedings on Count 4 and Count 5 as against Mr. Frenchy -- or Mr. Steer. I am sorry. [ 49 ] THE COURT: All right, thank you. [ 50 ] MS. DUMBRELL: Thank you, Your Honour. [ 51 ] THE COURT: The stays of proceedings of those two counts are recorded. [REASONS FOR SENTENCE CONCLUDED]