Her Majesty the Queen - v. -, 2022 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 8 Date: February 17, 2022 Information: 991175960 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jimlee Farms Ltd. Appearing: Buffy L. Rodgers For the Crown T. John Agioritis For the Accused DECISION K.A. LANG , J INTRODUCTION [ 1 ] On November 19, 2020, Jesus Heinar Zavala Guevara was fatally injured while operating equipment on the Defendant’s farm.

Following an Occupational Health and Safety (OHS) investigation, Jimlee Farms Ltd. (Jimlee) was charged as follows: On or about the 19 th day of November 2020 at or near Summerberry, Saskatchewan did being an employer, fail to provide an effective safeguard where a worker may contact a dangerous moving part of a machine as required by section 137(1) (

a) of The Occupational

Health and Safety Regulations, 1996 resulting in the death of a worker, namely Jesus Heinar Zavala Guevara, contrary to subsections 3- 78(

g) and 3-79 of The Saskatchewan Employment Act . [ 2 ] The charging Information was sworn on October 15, 2021 and on February 7, 2022, Jimlee, represented by legal counsel, appeared in court and pled guilty to the charge. In attendance in court on behalf of Jimlee were its owner and Director Mr. Jim Ross and the farm manager, Ms. Erin Ross. [ 3 ] The Crown and Defence made submissions to the court February 7, 2022 and jointly recommended a sentence in the form of a fine and surcharge, in the total sum of $80,000.00.

The total fined amount is to be broken down as follows: $57,143.00 – fine amount $22,857.00 – mandatory victim surcharge (40% of fine amount) Defence requested that Jimlee be given two years to pay this amount. THE INCIDENT [4] The Crown and Defence were in agreement with respect to the facts which were summarized as follows: On November 19, 2020. Occupational Health and Safety Services South was advised by the RCMP of a workplace fatality at Jimlee Farms Ltd. located near Summerberry, Saskatchewan. Officers attended to the site.

Jimlee Farms Ltd. is a corporation registered in the Province of Saskatchewan since November of 2015. Jimlee Farms Ltd. employs nine workers. The farm milks approximately 230 dairy cows twice daily and maintains a herd of other dairy cattle for breeding purposes. The farm occupies approximately 1500 acres and produces cattle feed along with cash crops. Jesus Heinar Zavala Guevara, age 34, was a temporary foreign worker from Veracruz, Mexico, employed as a farm worker with Jimlee Farms Ltd. since June of 2020. His wife and children reside in Mexico. Jesus died after being entrapped in a piece of farm equipment.

Findings of an autopsy determined that the likely cause and mechanism of death was asphyxiation secondary to chest compression by entrapment in the farm equipment. On the day of the incident, Jesus was feeding the dairy cattle and processing barley for feed by running or rolling the grain through a New Concept Grain Mill powered by a tractor. The tractor powered the grain mill through a power take off (PTO) shaft and another tractor powered by an auger which transferred the processed grain from the grain roller to a nearby grain bin. The processed grain was then mixed with the other feed to be fed to the cattle.

It is unknown how many times Jesus preformed this task. Jesus was working with another person who was performing tasks elsewhere at the time of the incident. There were no witnesses to the incident. It appears that while Jesus was attempting to visually inspect the rolling process, his clothing became snagged by the unguarded PTO shaft running between the tractor and the mill. His clothing was wrapped around the PTO shaft several times. His hands and face had come into contact with the chain and the gears driven by the PTO shaft.

When Jesus was found, the tractor powering the mill was no longer running and may have stalled. There was no guard in place to prevent contact with the power take off shaft, input gears and chains. According to the operator’s manual, the equipment was originally manufactured with a guard placed over the gears, chains and PTO shaft. OHS officers learned that the rollers on the mill had been replaced in July of 2020, that the guard had been removed to complete repairs,

and that the mill had previously operated without the guard. It is not known for sure how long the guard had been missing. BURDEN OF PROOF [5] The charge is considered a strict liability offence. Had this matter proceeded to trial the Crown would have borne the burden of proving the essential elements of the actus reus to a standard of proof beyond a reasonable doubt.

If the Crown had successfully discharged its burden then Jimlee could have avoided being found guilty but only if it was able to establish the defence of due diligence on a balance of probabilities. ( R v Brandt Industries Canada Ltd. , 2022 SKPC 4 at para 15 ) [6] Due to the fact that Jimlee voluntarily pled guilty to these charges, no trial was necessary and the Crown is deemed to have met the burden upon it.

THE LAW [7] Given that a guilty plea has been entered, the only task for this Court is to consider an appropriate sentence and whether or not the sentence being jointly proposed by the Crown and Defence is fair and reasonable. Statute [8] The applicable legislation relating to these specific circumstances is found in The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Act ] sections 3 - 79(7) and (9) which states:

(7) Subject to subsection (9), every person who is guilty of an offence mentioned in

section 3-78 that causes the death of or serious injury to a worker is liable on

summary conviction to a fine not exceeding $500,000.

(9) If a corporation is convicted of an offence mentioned in subsection (7), the convicting judge may order that the convicted corporation pay a fine not exceeding $1,500,000 if the convicting judge is satisfied that it is appropriate to do so having regard to: (

a) the need to achieve general deterrence; (

b) the number of previous convictions imposed on the convicted corporation; (

c) the number of previous notices of contraventions issued to, and the number of previous compliance undertakings entered into by, the convicted corporation; and (

d) the degree of responsibility of the convicted corporation, including considering the number of employees employed by the convicted corporation.

Case Law [9] The case of R v Westfair Foods Ltd ., 2005 SKPC 26 , 263 Sask R 162 [ Westfair ], sets out the principles to consider when determining penalty as follows: [38] Having regard to the approach taken in Cotton Felts Ltd. , supra, and the emphasis upon deterrence as a sentencing factor in the decisions that I have discussed, the approach which best fits with my understanding of sentencing of regulatory offences, and pertaining most specifically to occupational health and safety regulation, might be expressed as follows: i.

The primary objective of regulatory offences is protection and in the context of occupational health and safety legislation, it is the protection in the workplace of the employee and the general public .

ii. The sentencing principle which best achieves this objective is deterrence and while deterrence may be regarded in its broadest senseand includes specific deterrence, general deterrence is a paramount consideration. iii. There are numerous factors, which may be taken into account and the weight attributed to each will depend upon the circumstancesof each case. [emphasis added] [10] The case of R v Fire Sand Real Estate Ltd., 2019 SKPC 54, sets out a

summary of factors which the Court should consider incontemplating the appropriate amount of the fine. These factors in large

part came from the Westfair (supra at para. 38) case and aresummarized by this Court as follows: (

i) Size of the business • The greater the size of the company; the greater their resources, experience and organizational sophistication. • A larger company has a greater ability to ensure, monitor and address compliance with health and safety legislation. • The amount of fine imposed by the courts tends to vary depending on the size of the employer. (ii) Connection between profit and illegal action • The question here is whether the company prioritized profit over occupational safety? • Did the company push to prevent delay and extra expense at a risk to the worker(s)? • Was the illegal action (safety violation) caused or connected to a profit motive? (iii) Gravity of the offence • The greater the injury the more aggravating this factor. • The most egregious of occupational health and safety cases involve the loss of life. (iv) Degree of risk, extent of danger and foreseeability • If a risk is plainly clear to all involved, or well-known, yet still not adequately addressed, the penalty should be higher. • The extent of the danger is also an aggravating factor. • Has the employee brought these safety concerns forward in the past?

For example asking for additional safety equipment. (

v) Maximum penalty prescribed by statute • At para. 19 of R v Cotton Felts Ltd. (1982), (ON CA), 2 CCC (3d) 287 (Ont CA), the Ontario Court of Appealmade this observation: [19] … The amount of the fine will be determined by a complex of considerations, including the size of the company involved, thescope of the economic activity in issue, the extent of the actual and potential harm to the public, and the maximum penalty prescribed bystatute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence. [emphasis added] • Maximum fines for this offence were raised in 2014 to reflect the increase in the wealth and international nature of business inSaskatchewan while recognizing that fines must be appropriate and proportionate. • The legislative changes increasing fines for a variety of offences was intended to reflect the passage of time since fines were lastincreased and to renew governmental efforts to address worker safety.

The end result would seem to be that the courts ultimately willassess higher fines after balancing all relevant factors. • The increase to $1.5 million dollars was to flag the largest and worst corporate offenders (R v Basic Truck and Trailer Repair Inc.2021 SKPC 21.

• Yet, the mere increase in fines does not automatically signal that the courts should assess higher fines: see R v Carrier Forest Products Ltd ., 2018 SKPC 7 [ Carrier- PC] affd 2019 SKQB 84 at para 34 [ Carrier- QB]. • Judge Gray elaborated in R v Shercom Industries Inc. , 2018 SKPC 3 : [32] … it is my view that the significant increase to the maximum penalties set by the Legislature is a strong signal to the courts that penalties must be greater and that companies must not view a fine simply as another cost of doing business. (vi) Range of fines and potential impact on the business • The Court must consider the impact of the fine on the business and its future viability in light of the fine to be assessed.

In Carrier- PC affd Carrier -QB supra , the company employed a large portion of the community, as such, the economic survival of the community was dependent upon the company remaining solvent. (vii) Past diligence and previous offences • Certainly companies who have past offences are more culpable than those who have a track record of diligence. (viii) Degree of fault (culpability) or negligence of the employer • This factor is primarily important in a situation whether there are contractors and/or sub-contractors. • Additionally, if an employer is aware of a safety risk they must address it, for example, in R v Reid & Deleye Contractors Ltd. , 2009 ONCJ 776 the Court held that where a worker is known to be somewhat reckless, it is incumbent upon the employer to ensure that the worker is sufficiently supervised so as to eliminate the risk of accident as far as is reasonably possible.

It was found that placing a foolhardy worker with a more responsible worker did not adequately address the risk as the latter did not have any authority over the worker known to be reckless. (ix) Contributory negligence of another party • Again this factor is more pertinent for cases involving contractors and multiple levels of supervision. • Some weight can also be attributed to the ability/knowledge of the employee to ensure their own safety. (

x) Employer's response - reparations to victim or family - measures taken and expenses incurred so as to prevent recurrence or continued illegal activity • Has the company taken significant steps to address the safety concerns in the workplace such as putting in new equipment, checks and balances, training their employees, more supervision etc.? • Has the company made reparations/apologies to the victim or the victim’s family that show remorse? (xi) A prompt admission of responsibility and timely guilty plea • A prompt admission of responsibility and a timely guilty plea are mitigating factors. [11] Finally, the Court has considered a range of cases that have come before the courts in Saskatchewan resulting in significant injury and death.

The range is wide, falling anywhere from $10,000.00 - $420,000.00. The cases considered are summarized as follows: R v C & D Electric Ltd ., (10 January 2020) Estevan, CRM 28/2017, Chow J (Sask QB) • Worker died as a result of trench cave-in; • Small business operation, very similar circumstances to R v Pederson, 2000 SKQB 255 ; • $10,000.00 fine.

R v Rosin , 2005 SKQB 537 , 273 Sask R 114 • Part-time employee killed when bucket lever arms of skid-steer dropped unexpectedly; • Retired 75 year old farmer who operated small snow removal business; • One to two employees; • Net annual income less than $10,000.00; • $34,500.00 fine reduced on appeal to $17,250.00, total fine and surcharge.

R v Riemer , 2012 SKPC 119 , 402 Sask R 214 • Two persons killed and several injured resulting from accused snagging an underground natural gas line with backhoe; • Small, one-person operation which occasionally hired sub-contractors; • No type of organizational structure or sophistication to business; • Labelled a "mom and pop operation"; • $28,000.00 fine. R v J & D Sewer Services

(1984) Ltd. , 2016 SKPC 125 • Two employee deaths; • Accused was hired to do routine maintenance work on village sewer lines. One of the employees fell into a manhole and died, another employee tried to rescue him but was trapped and died; • Very small company that consisted of the two deceased men and their employer; • No safety equipment was on hand that could have been used to prevent fatalities; • First offender, did not contest charges; • Quit working in the industry after this incident with no plans to return; • $30,000.00 fine.

R v T & L Den Brok Enterprises Inc ., 2014 SKPC 97 , 444 Sask R 73 • Employee changing tractor tire was paralyzed when tractor fell as a result of failure of the hydraulic jack; • Local business employing 13 people generating $325,000.00/year revenue; • Sentencing judge noted that employer made significant changes post-incident including hiring outside safety consultants and expending approximately $100,000.00; • $30,800.00 fine.

R v Pederson , 2000 SKQB 255 • Worker suffocated when walls of trench collapsed in on him; • One person business with two employees; • $9,000.00 contract to do the work; • $95,000.00 fine reduced on appeal to $40,250.00, total fine and surcharge. R v Cowan Bros. Transport Ltd. , (21 September 2017) Montreal Lake, Harradence J (Sask Prov Ct) • Trucker killed when caught underneath his semi being pushed from the mud;

• Family owned operation with limited number of employees; • $84,000.00 fine. R v Fire Sand Real Estate Ltd. , 2019 SKPC 54 • Tradesman severely injured when knocked from scissor-lift by nearby crane; • Company employed 16 people and was experiencing financial losses requiring monthly cash injections; • Not yet turned a profit according to the owners; • Described by judge as "relatively small, family-owned business that is part of a larger family-owned enterprise... [which] does not fall into the category of a "mom and pop operation"; • $84,000.00 fine.

R v Carrier Forest Products Ltd. 2018 SKPC 7 • Employee killed while repairing chipper at saw mill. He left the machine on during the repair, contrary to policy and was killed; • Incident could have been prevented if machine was equipped with additional safety feature; • Accused pleaded guilty; • First offence; • Mid-size company (136 employees); • Relevant factor in this case was ability to pay, given the accused was largest company, however imposing too high a fine would risk the company shutting down. The mill employed most of the community.

Company was already operating at significant financial losses; • Accused installed additional safety switch after death and had made substantial gratuitous payments to the widow of deceased employee; • Decision upheld on appeal; • $87,500.00 fine. R v Basic Truck and Trailer Repair Inc. , 2021 SKPC 21 • Two employees were working on a gravel truck the previous day, the box could be raised with hydraulic lift but not lowered, issue was not remedied.

The next day, one of the employees continues working on the truck unassisted, a steel band broke and the box descended rapidly and pinned him, causing his death; • Small shop, locally owned with one location, employing six people roughly; • $91,000.00 fine; • Crown sought fine of $189,000.00, Defence $30-35,000.00. Court imposed $91,000.00 inclusive of surcharge with 36 months to pay; • Accused did not take any steps to improve safety protocols, replace or upgrade safety equipment or institute safety training; • $91,000.00 fine.

R v Norwood Developments Ltd ., 2021 SKPC 20 • Two accused, the prime contractor (ND) and the employer (CC) worker fell into an unfinished basement at a new build residential site;

• Suffered non-survivable brain injury when head struck foundation; • Not wearing a hard-hat at the time; • Sub-contractor had removed the temporary stairs to the basement the day before, worker was unaware of this; • Accused pleaded guilty; • Given 36 months to pay; • Prime contractor (ND) $91,000.00 fine; • Employer (CC) $56,000.00 fine.

R v Brad Hammond Construction Ltd ., (24 January 2018) Carlyle, Wiegers J (Sask Prov Ct) • Worker paralyzed from waist down as a result of falling from roof of shed being constructed; • Construction company employing roughly 15 workers; • Described as a "small tight knit company"; • $140,000.00 fine.

R v Banff Constructors Ltd , 2021 SKPC 44 • First offender; • Very large corporation with many employees, it supplies the labour force for Graham Construction, which is one of the largest building contractors in Western Canada; • Well organized company with multi levels of supervision, training and support in workforce; • Employer made significant reparations to family of deceased; • Crown sought substantial fine of one million dollars; • Degree of risk was reasonably foreseeable, table carts were involved in lifting very heavy form to hold concrete while it dried.

The carts had been modified to be raised higher than manufacturer recommendations with little to no thought as to how that might change dynamics. Worker was crushed when the cart collapsed; • There was a series of past incidents involving the table carts; • A prompt admission of responsibility and timely guilty plea was not offered in this case; • $250,000.00 fine. R v BLS Asphalt Inc , 2021 SKPC 34 • Employee was clearing clogged gravel separator chute.

The supervisor had disengaged power to the separator but not to the conveyor belt that ran below the chute, employee slipped and caught his leg, died from loss of blood; • Fine must be high enough to deter companies from failing to install safeguards or to implement procedures to safely clear clogged chute; • Since employees left machinery running to avoid cost of stopping, there was connection between profit and illegal actions, which constituted aggravating factor; • Employer had high degree of culpability and, given evidence as to frequency of chute-cleaning, breach was not isolated incident; • Employer's remorse, clear safety record, prompt and decisive response to incident and support provided to employee's child and family were relevant factors;

• Employer was mid-sized business and proportionate fine would not drive it into closure; • $350,000.00 fine. R v Shercom Industries Inc. , 2018 SKCP 3 • In this case a worker was killed when he became entangled in a tire shredder.

He was able to call 911 twice for help but died before his coworker or EMS could find him; • Accused pleaded guilty; • Mid-size company with 47 employees, plus management team; • Crown sought $750,000.00 fine inclusive of surcharge, Defence sought $150,000.00; • Accused paid “superficial attention” to employee safety; • No true effort by company to ensure culture of workplace safety; • Safety concerns were considered secondary to profit; • Since fatality occurred accused went to significant lengths and expense to ensure that incident did not occur again; • $420,000.00 fine. [12] One unreported case which was provided to the Court by the Crown involved Sommer Greens Forages [ Sommer Greens ].

In that case on December 17, 2020, Sommer Greens pled guilty in Outlook Provincial Court to violating one count under The Occupational Health and Safety Regulations, 1996 , RRS c O-1.1 Reg 1 [ Regulations ] as a result of a workplace fatality that occurred on October 25, 2019.

The Saskatoon company was charged with contravening subsection 139(1) of the Regulations (being an employer, failed to ensure that before a worker undertakes the maintenance, repair, test or adjustment of machine other than a power tool, the machine is locked out and remains locked out during that activity if not doing so would put the worker at risk, resulting in the death of a worker). Three other charges were stayed. As a result of this charge, the Court imposed a fine of $50,000.00, along with a surcharge of $20,000.00, for a total amount of $70,000.00.

The charge stemmed from a workplace fatality that occurred on October 25, 2019, near Broderick, Saskatchewan. While clearing the teeth on the roller of a baler, the worker became entangled, resulting in the worker’s death. Victim Impact Statement [13] The Court received a victim impact statement from the widow of the deceased. Her name is Carmen Pavon Velazquez. Her victim impact statement was read aloud in open court. [14] It is clear from her statement that the death of Mr. Guevara has had a devastating impact on the family, both emotionally and economically. Mr. Guevara was deeply loved by his family.

He was described as a happy person, strong and healthy, full of enthusiasm. He was a “correct and honest person, an excellent husband, father, son, brother and friend”, as described by Ms. Velazquez in her statement. [15] Ms. Velazquez further wrote that her husband came to Canada in part because “we knew Canada was an excellent country because labor and human rights are very protected.” On this occasion, this employer failed to live up to that reputation.

Analysis [16] Before the Court can properly assess the appropriate amount of the fine and the reasonableness of what is being jointly proposed by the Crown and Defence, a closer look at the circumstances of this particular case must be undertaken as it relates to the Westfair principles supra . 1. Size of the Business [17] Jimlee employees nine workers to care for and milk 230 dairy cows as well as provide care for approximately 100 additional cows for breeding purposes. The farm is approximately 1500 acres in size. The farm also produces cattle feed.

In the Court’s view Jimlee would be considered a small to medium size company. This factor is important as it speaks to the company’s ability to pay a fine and what amount of fine would be adequate to deter future unsafe behaviour of this and other similarly sized companies. 2. Connection between profit and illegal actions [18] In this case failure to have a power take off shaft properly guarded was a significant factor in the cause of the incident. No profit motive was associated with this failure as described by the Crown.

The Crown described the failure to have the safeguard in place as more of an oversight on behalf of the company rather than any profit motivated action. This Court would find it difficult to imagine any profit motive or efficiencies that might be achieved by failing to have the power take off shaft unguarded and therefore accepts that there was no profit motive to the actions of Jimlee. 3. Gravity of the offence [19] The deceased, Mr. Guevara, was a 34 year old temporary foreign worker from Veracruz, Mexico. He had a wife and two children. His injuries were fatal.

The loss of his life has had a devastating impact on his family both emotionally and economically. This is certainly an aggravating factor to be considered by the Court. Other employees working at Jimlee and indeed the farm owners themselves were traumatized by this incident. 4. Degree of risk, extent of danger and foreseeability [20] The equipment in question is manufactured with a guard. To not have the guard properly in place is most certainly dangerous and the prospect of significant injury occurring is most certainly foreseeable. This is extremely aggravating. 5.

Maximum penalty prescribed by statute [21] The maximum penalty prescribed by statue is one and a half million dollars. This would be applicable to the largest companies operating in highly egregious circumstances and causing significant injury and death. The maximum penalty does however demonstrate the legislative intent to deter unsafe employer behaviour through significant fines for any employer conduct breaching the Regulations . 6. Range of fine and potential impact on the business [22] A fine of $80,000.00 is being proposed by Crown and Defence.

A fine in this range will have a significant impact on Jimlee’s business and will represent a significant hardship for this company.

[23] As a result of this conviction Jimlee is also temporarily prevented from participating in the foreign workers program which will also create a hardship for it. 7. Past diligence and previous offences [24] This company has no prior convictions and no prior notices of contravention of the Act which is a factor in its favour. 8. Degree of fault, culpability or negligence of this employer [25] The fact that a proper safety guard, available for the equipment, was not being used in a situation where significant injury or loss of life was foreseeable speaks to a high degree of fault on behalf of the employer. 9.

Contributory negligence of another party [26] The deceased was operating this equipment by himself when this incident occurred. There were no witnesses. There is nothing to suggest that any other party contributed to this incident except perhaps the deceased himself through his own negligence, but this is unknown. 10. Employers response, reparations to victim or family, measures taken and expenses incurred so as to prevent recurrence or continued illegal activity. [27] The response by Jimlee to this incident has been fairly significant. Jimlee’s owners and manager appeared in court.

Their legal counsel outlined to this Court that this employer family has responded decisively and has promptly taken full responsibility for its actions. The family expressed their sincere condolences to the family of the deceased and are extremely remorseful. [28] Since this incident Jimlee paid to have all of its foreign workers associated with the deceased, flown home, following the incident. Jimlee paid all costs of transporting the deceased’s body home. [29] Jimlee has had communications with the family of the deceased throughout the process.

The Company’s insurers have had communication with the family and Jimlee has made an ex gratia payment of $20,000.00 to the family of the deceased to assist with any immediate economic impact to the deceased’s family.

In addition, the family has received a copy of both the coroner’s report and autopsy report. [30] Jimlee has taken action to improve the safety of its operations including: - establishing a truly functioning occupational health and safety committee which meets regularly; - establishing an emergency response and first aid plan for the farm; - translating all safety notices and warnings into Spanish; - conducting hazard assessments with respect to not only the specific equipment involved but the farming operations generally. 11.

Prompt admission of responsibility and timely guilty plea [31] Notably this incident occurred on November 19, 2020. However, the actual charge against Jimlee was not sworn until

October 15, 2021. Jimlee acted promptly to secure legal counsel and take responsibility by entering a guilty plea on February 7, 2022. CONCLUSION [32] Assessing the proper amount of a fine in a situation such as this, is not an easy task. It needs to be stressed that determining the proper amount of the fine should in no way be confused with placing a value on human life.

If that were the case, no amount would ever be enough. [33] Determining the proper amount of a fine for the purpose of these proceedings is more about determining what amount of fine is necessary to deter this offender and others like it, from putting its employees at risk of injury or death. The goal is the protection in the workplace, of the employees and the public generally.

By imposition of significant fines, which take into account all of the factors reviewed herein, courts seek to achieve this goal by making it punitive for companies to operate in an unsafe manner. [34] Numerous other cases coming before the courts were reviewed. The range of fine is wide depending upon the circumstances.

Perhaps the case must closely associated to this case as that of Sommer Greens , an unreported case provided by the Crown. [35] In addition this Court must also place a certain amount of weight on the fact that the amount of fine being proposed is being offered jointly by the Crown and Defence in the form of a joint submission. Both lawyers are senior, experienced counsel.

All of this is not lost on the Court. [36] In conclusion therefore, having reviewed the case law and the circumstances of this most unfortunate incident, this Court has come to the conclusion that the amount of fine being recommended jointly by the Crown and Defence is appropriate in these specific circumstances. [37] The total fine amount is therefore assessed as follows: Fine $57,143.00 Surcharge (mandatory 40% of fine) $22,857.00 Total $80,000.00 [38] The Court will allow Jimlee a period of two years to make payment. __________________________ K.A. Lang, J