R. v. Noringseth Date:, 2016 BCPC 183

Citation: R. v. Noringseth Date: 20160211 2016 BCPC 0183 File No: 6324-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NORMAN THOR NORINGSETH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: A. Switzer Counsel for the Defendant: M. Low Place of Hearing: Courtenay , B.C. Date of Hearing: September 21, 2015 Date of Judgment: February 11, 2016

INTRODUCTION: [ 1 ] Mr. Noringseth has been a commercial fisherman for approximately 30 years. [ 2 ] From December 4, 2011, to December 14, 2011, (the First Trip, and again from March 31 to April 22, 2012, (The Second Trip), Mr. Noringseth unlawfully fished outside Canadian fisheries waters and in U.S. waters. These are Counts 1 and 2 on the Information before me. [ 3 ] He also failed to submit fish slips within seven days of landing his vessel between December 27, 2011, and May 24, 2013, and between May 4, 2012, and May 24, 2013, which comprise Counts 6 and 7 of the Information.

These events arose while he was the captain of a 24-metre ship called the Viking Tide , which is owned by Leader Fishing Limited. [ 4 ] The Crown seeks a global fine of $30,000, as well as an order prohibiting Mr. Noringseth from fishing within two kilometres of the U.S.-Canada fishing boundary. [ 5 ] Mr.

Noringseth says that the appropriate sentence is a $2,500 fine each in respect of Counts 1 and 2, and a fine of $500 each in respect of Counts 6 and 7 for a global fine of $6,000. [ 6 ] He also says that a prohibition from fishing within two kilometres of the U.S.-Canada maritime border for two years is appropriate, as well as a one-year prohibition from fishing sablefish and he has agreed to make a donation of fresh salmon to a local foodbank. THE FACTS: [ 7 ] There is no dispute regarding the facts. Mr. Noringseth was fishing for sablefish, also known as black cod.

In mid-November 2011, the Viking Tide left port and followed a heading to Langara Island at the northern-most tip of Haida Gwaii. From there, he planned to fish along the U.S.-Canada maritime boundary located to the north, at latitude 54 degrees and 40 minutes. It was the first time he had fished in these waters, and he thought the boundary extended in a straight line, not realizing that it curved slightly to the south. [ 8 ] His plan, as I understand it from his counsel's submissions, was to start fishing south of this line and continue to follow the boundary on the south Canadian side.

He says that, because he failed to appreciate where the actual boundary was, he unknowingly crossed into U.S. waters. [ 9 ] Sablefish is considered a Pacific groundfish fishery, and accordingly fishing is limited to distinct geographical zones that lay within the Canadian Exclusive Economic Zone, often called the EEZ. [ 10 ] It is highly regulated, and compliance in this industry is monitored by ensuring that vessels are equipped with either an onboard sophisticated electronic monitoring system, which includes a GPS data locator or a designated groundfish at-sea observer. [ 11 ] Vessels are also monitored by surveillance, and in this case the Viking Tide's location was being monitored in real time by the Archipelago Marine Research ("AMR"). [ 12 ] As a result of the AMR surveillance, it was determined that during the First Trip, the incursions by the Viking Tide into U.S. waters ranged from a distance of two kilometres to nine-and-a-half kilometres. [ 13 ] During the Second Trip, the incursions by the Viking Tide into U.S. waters ranged up to a distance of 25 kilometres. [ 14 ] Mr.

Noringseth caught sablefish from both Canadian and U.S. waters during these trips. It was very difficult for the Department of Fisheries and Oceans to accurately assess the amount of sablefish caught illegally in U.S. waters, due to the fact that neither Mr. Noringseth nor Leader Group submitted fish slips. As a consequence, the Fisheries officer used Mr. Noringseth's log books to estimate the weight of sablefish caught during trips when the Viking Tide was either partially or wholly in U.S. waters. [ 15 ] Respecting the First Trip, it was estimated that Mr.

Noringseth's vessel caught and retained 37,887 pounds of sablefish. Using a value of $7 per pound, a value which Mr. Noringseth did not dispute, the value of the fish caught, in whole or in part, in U.S. waters from this trip was $265,209. [ 16 ] Respecting the Second Trip, the estimated weight of sablefish caught and retained, wholly or in part, from U.S. waters was 114,130 pounds, and at $7 per pound, was valued at $798,910.

The Second Trip, therefore, was longer and also comprised the bulk of the fish that were caught over both trips. [ 17 ] The total value of the fish caught illegally is just over one million dollars. [ 18 ] For the reasons stated, these are not precise calculations, due to the lack of the fish slips but, if anything, they are conservative. [ 19 ] Mr. Noringseth, through his counsel, expresses remorse and indicates that the travel into U.S. waters was inadvertent and due to his misapprehension of the location of the U.S.-Canada maritime border. I do note that in Mr.

Noringseth's log books, he did accurately record the latitude of where he thought the border should be. [ 20 ] With regard to the failure to submit the fish slips for these two trips, Mr. Noringseth says that this was a result of another misunderstanding, in that he assumed that his employer, the owner of the vessel, was submitting the fish slips, as the owner had always done this for him.

Nonetheless, it is clear that the sablefish licence under which the Viking Tide was operating clearly indicates that the vessel master is responsible for ensuring fish slips are submitted and mailed to Fisheries and Oceans Canada not later than seven days

after landing. [21] He argues that in considering an appropriate sentence, the court should take into account a number of factors. [22] Mr. Noringseth accurately recorded his location in his log books, and the fishing incursions into U.S. waters were inadvertentand an honest mistake. [23] I should consider that Mr. Noringseth, by his calculations and based on his share of the revenue for the First Trip, earned agross revenue of a little over $31,000 and net earnings of approximately $5,400.

With regard to the Second Trip, he earned a grossrevenue of $30,222 and a net income of about $20,800. [24] Both calculations of net income relate only to illegally caught sablefish. However, he submitted any fine imposed should not bebased on his pre-trip preparations for these two voyages or what he called the innocent activities. [25] He also asks the court to consider that this offence took place three years ago and a fine will cause financial hardship to him.

He says that he earns an average personal income of some $59,000 annually, and supports a wife and three children. [26] During submissions, his counsel informed the court that Mr. Noringseth is employed transporting fish between fish farms andalso partakes in salmon fishing in the summer. He is also the owner of his own fishing boat and expected, at the time I heardsubmissions, to earn an annual income in the vicinity of $90,000 between these various enterprises.

I also am given to understand that itis likely, at least at this time, that he is not intending to resume sablefishing. [27] He also submits that sablefish stocks are not endangered or at risk, and this mitigates the seriousness of the offence. He arguesthat there is no evidence that Mr. Noringseth's actions have harmed the fishery at all. [28] He has entered an early guilty plea, is remorseful, and is otherwise an upstanding and contributing member of society. Thesentencing objectives of deterrence, he says, will not be advanced by a large fine.

THE LAW: [29] Counsel provided me with a number of case authorities which collectively set out a number of general principles. [30] I adopt the following passage by MacDonald J. in R. v Rideout, 2005 NSSC 4, para. 15: In sentencing cases such as the matter before the Court, a Judge must also bear in mind regulation offences such as those provided underthe Fisheries Act are designed to protect and preserve a valuable resource and any contravention of them must be taken seriously.

TheFisheries are a natural resource and are in danger of being depleted or destroyed and this would have wide ramifications for not onlyfishers but society in general. Deterrence must be a primary consideration and penalties have to be imposed to reflect the seriousness ofthe offences and to force offenders to understand the ramifications for violation of these regulations to both themselves and society.[Emphasis added] [31] In determining a fit and a proper sentence, I must apply the objectives of sentencing set out in

section 718 of the Criminal Code,including a consideration of any aggravating or mitigating circumstances. Those objectives are, collectively, denunciation, specific andgeneral deterrence, separation of the offender from society when necessary, rehabilitation of the offender and promoting a sense ofresponsibility for harm done to victims and the community, and reparation for harms caused. [32] In the context of an offence under the Fisheries legislation, it is clear that particular emphasis is placed upon deterrence, and inparticular general deterrence.

Fisheries legislation is designed to protect and preserve a valuable resource, and the penalty for illegallyfishing must reflect the seriousness of these offences. [33] A fine must be sufficient to accomplish those objectives and not simply represent a licence fee or the cost of doing business. Irefer to R v. Ivy Fisheries, which relied on and cited the comments of Edward, J. in R. v. MacKinnon (1996) (NS SC), 154 N.S.R. (2nd) 217 (S.C., para. 17-19: A fine must be substantial enough that it will send a message to the public that illegal activities will not be tolerated by the courts.

Theamount of fine should take into consideration both the seriousness of the offence and the general principles of sentencing. A fine shouldnot be so low that it will be seen as a licence fee or as a mere cost of doing business. A low monetary penalty may also be considered anaffront to those, the majority, who do comply with the Act. [Emphasis added] [34] In this case, the mitigating factors are that Mr. Noringseth has pled guilty to these charges and thus has accepted responsibilityfor his actions. He has no prior record. [35] Shane Gallop provided a letter to the court, and has known Mr.

Noringseth for approximately 20 years. He describes him asalways willing to give a hand if there was someone that needed it. [36] Duane Hemingway has known Mr. Noringseth for 17 years and describes him as knowledgeable, conscientious, patient,generous, hardworking and a skilled fisherman. He notes that Mr. Noringseth has an excellent reputation in the community and hisworkplace. [37] A fit and a proper sentence must be crafted in respect of each individual case. I am guided by other cases, but in the end must

determine what is appropriate in the case before me. [ 38 ] I have reviewed the law provided by counsel and refer to the following cases which involve fishing in international or closed waters and in somewhat similar circumstances. [ 39 ] In R. v. Hau , Surrey File No. 94839-03DC2 (1999 February 15), the accused had a prior record, including one for fishing in U.S. waters. He received a $5,000 fine and was also required to pay $10,000 for the benefit of the Community Fisheries Development Centre. The total penalty was $15,000. [ 40 ] In R . v. Perry [2003] N.J.

No. 27 , the accused was an experienced captain and employed by the owner of the fishing vessel. He was found guilty of illegally fishing for snow crab in Canadian waters over the Canadian continental shelf. He asserted that this was the first time he had fished in these waters and did not realize that he was fishing in Canadian territory. The court noted that the captain, Mr. Perry, failed to make the necessary preliminary preparation or investigations and simply proceeded into unfamiliar territory on the basis of past assumptions. Mr.

Perry was fined $25,000, and the money from the sale of the crab, which was just over $132,000, was forfeited to the Crown. [ 41 ] In R. v. Rideout , 2005 NSSC 4 , Mr. Rideout illegally caught snow crab valued in excess of $35,000 while fishing outside the area in which he was permitted to fish. In charting his route, he mistakenly plotted a straight line on his navigational chart which actually took him into another area where he was not permitted to fish. [ 42 ] The court noted that the correct coordinates were available upon his request, but he had failed to avail himself of that information.

The original sentence of $4,000 by way of fine was successfully appealed and varied to a fine of $2,000 plus forfeiture of the proceeds of the catch valued at just over $35,000, thus the total penalty was a little over $37,000. [ 43 ] In this case, Mr. Noringseth is an experienced commercial fisher and captain of a large vessel. He knew he was engaging in a highly regulated industry. He could have easily determined the coordinates and the actual location of the U.S.-Canada boundary.

Not only is that information widely available on the internet and charts and maps, the GPS coordinates were set out in his sablefish licence, along with the clear direction that the captain of the vessel is responsible for submitting the fish slips. [ 44 ] While I acknowledge that wilful and deliberate actions would be considered an aggravating factor, allowing a reduced penalty because an experienced captain made a mistake, in my view, would be to reward carelessness or negligence. [ 45 ] Fishing in U.S. waters does impact the overall fishery.

In her paper dated January 31, 2013, Chantell Caron, Halibut and Sablefish Coordinator for the Department of Fisheries and Oceans, explains the complex system that has been developed to manage the commercial groundfish fisheries. [ 46 ] There are distinct geographical zones within Canada's Exclusive Economic Zone (EEZ) which are managed by the Commercial Groundfish Integration Program. A quota system is imposed, and there is 100% at-sea and dockside monitoring for all fish caught and released. This is also integrated with the quota management system and setting of a Total Allowable Catch (TAC) for each species.

These are established by relying on the most recent stock assessments. Similar systems to manage the fisheries resource are also in place for U.S. waters and fisheries. [ 47 ] Ms. Caron states: …if the total allowable catch is set to be taken within a given geographic area, fishing outside that area can have a direct negative impact on stock assessment and proper fishery management in both the area that the TAC was set [i.e.

Canada], and the area where the unaccounted fishing occurred, the other nation's economic zone [in this case, the U.S.] Unauthorized fishing in another nation's EEZ undermines international law, the hard work of international bodies that collaborate in the management of fisheries, and those fish harvesters that are complying with the rules. [ 48 ] I have considered it a mitigating circumstance that Mr.

Noringseth has entered an early guilty plea, and also that this is his first offence in an otherwise successful career. [ 49 ] However, I am of the view that general deterrence must be given paramountcy for an offence involving a legislative scheme which imposes strict liability and which has a primary objective of protecting a valuable resource. [ 50 ] I acknowledge counsel's submission that it would be improper to impose a fine that Mr. Noringseth cannot pay, and I take into account Mr. Noringseth's financial obligations to support his family.

I had also considered his submission that it would be appropriate for the court to suspend his ability to fish for sablefish for one year, but as I doubt he would be engaging in such fishing in any event, I am of the view that a reduced fine, coupled with the sablefish licence suspension, would not satisfy the objective of general deterrence in this case. [ 51 ] I am also of the view that the fact Mr.

Noringseth was an employee and not the owner of a vessel, and therefore did not partake in the larger profit, is secondary to the importance of general deterrence. [ 52 ] In the context of sentencing relating to an environmental offence, Judge Cowling in the Rivers Inlet Resort decision R. v. Rivers Inlet Resort Ltd. and Richard Shapland (11 January 2011), Nanaimo 68589-2-CT (B.C.P.C.) said this: The financial resources of Mr. Shapland and/or the corporate defendant are somewhat secondary here to the issue of deterrence. It is

important that entities, whether corporate or personal, be deterred from activities which pose an inherent threat to the environment... [ 53 ] I adopt that reasoning in the case at bar, although I have turned my mind to the fact that a fine must be reasonable in all circumstances and reflect the principles and objectives of sentencing. [ 54 ] In the circumstances of the case before me, I impose the following fines: With regard to Count 1, the fine is $5,000; With regard to Count 2, the fine is $10,000; With regard to Count 6 and Count 7, the fine is $2,500 on each count; The total global fine is $20,000. [ 55 ] Subject to further submissions, I will allow Mr.

Noringseth a period of four years to pay that amount, given the circumstances. [REASONS FOR JUDGMENT CONCLUDED]