R. v. Ward, 2019 BCPC 277

Citation: R. v. Ward 2019 BCPC 277 Date: 20190815 File No: 6765-1 Registry: Queen Charlotte IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BROCK LORNE WARD ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Crown: A. Switzer Appearing on his own behalf: B.L. Ward Place of Hearing: Masset , B.C. Date of Hearing: August 15, 2019 Date of Judgment: August 15, 2019 [ 1 ] THE COURT: This is on File Number 6765 in which Brock Lorne Ward has pleaded guilty to two offences contrary to s. 78(

a) of the Fisheries Act that occurred between March 31st and July 13, 2019, near Sandspit, British Columbia, on Haida Gwaii. The events that the court is concerned about actually occurred in and about the July 13th date. [ 2 ] On that occasion, Fisheries Officers went to the location of Mr. Ward's employment, namely, the Sandspit Adventures Fishing Lodge on patrol to confirm compliance with the various Fisheries Regulations. While they were doing that, they came upon Mr. Ward. Mr. Ward is an employee of that operation and acts as a guide to recreational fisher people.

They asked to inspect his licence and they noted that recording of catches of halibut were not in the correct order. They inquired of Mr. Ward about that and he said that he had written some items down in a hurried fashion because he had heard that Fisheries Officers were at the lodge doing inspections. He

immediately accepted responsibility for not properly completing the licence as required when each fish was caught and, from there, the Fisheries Officers further examined the licence. [ 3 ] So the first count, namely, that Mr. Ward failed to comply with a condition of the Tidal Water Sport Fishing Licence, by failing to immediately record on the licence retained halibut has been made out and has been admitted to by Mr. Ward. [ 4 ] On the second count, the Fisheries Officers started to look at the size of the halibut that Mr. Ward had noted as having caught.

There are two types of halibut length that have to be considered. First of all, if a halibut is between 90 centimetres and 126 centimetres, only one halibut can be retained in possession, but if the halibut is less than 90 centimetres, then two halibut can be retained. The Fisheries Officers noted Mr. Ward's licence had noted what appeared to be an alteration to the licence such that Mr. Ward was recording fish as 89 centimetres rather than 90.

Well, that one-centimetre difference, of course, makes a considerable difference because it would permit two halibut to be retained rather than one. [ 5 ] That was not the end of Mr. Ward difficulties, because the Fisheries Officers asked to see his fish. They went to check the fish in the freezer locker and they found that he had four fish that he was retaining rather than the two that would have been allowed had they been 89 centimetres or less. [ 6 ] Mr. Ward was quite cooperative with the Fisheries Officers throughout. He was, as the Crown described, forthright with them when confronted.

That is to say, he did not offer up the information, but when they pointed out the error of his ways, he acknowledged that he had committed the infractions. By having four halibut, Mr. Ward breached the terms of Tidal Water Sport Fishing Licence and the Fishery (General) Regulations and, as such, Count 2 is made out. [ 7 ] Mr. Ward has no previous Fisheries Act related offences. He is a university student entering his last year of studies and he has earned his income for his studies in each of the last three years working as a guide.

He tells me that he earns between $12,000 and $14,000 income as a guide and then last year he earned approximately a further $6,000 in tips from grateful clients. [ 8 ] The Crown has referred the court to a large number of cases that I have had the opportunity read. I am just going to cite them here. The first is R. v. Genge and Walsh , a decision of Provincial Court of Newfoundland and Labrador, found as having a judgment filed January 10, 2007, Court File Numbers 0306A-00948, 50 & 60; R. v. Boar and Queen Charlotte Lodge , from the Vernon Registry, dated July 29, 2016, Court File Number 6335; R. v.

Adull [phonetic], Prince Rupert Registry, a decision dated August 16, 2016, File Number 6336; R. v. Hampson [phonetic], a decision from the Powell River Registry, dated January 20, 2016, Court File Number 15473-1; R. v. Tang Tong et al [phonetic], from the Sechelt Registry, a decision dated June 20, 2018, on File Number 17427; and finally R. v.

Goo Bee et al [phonetic], from the North Vancouver Registry, dated December 18, 2018, File Number 66277. [ 9 ] Crown has provided those cases for two reasons, one to assist the court in enunciating the general principles that have to be applied in sentencing somebody for a regulatory offence under the Fisheries Act , and the other is to provide the court with some indication of previous fines for various different types of offences. None of these cases is identical to the case of Mr. Ward, no two cases ever are, but the sentencing principles apply regardless.

The principles when dealing with a regulatory offence such as fishing and breaches of the Fisheries Act are pretty clear. They are denunciation, general deterrence, and specific deterrence. [ 10 ] I have no doubt that Mr.

Ward will be specifically deterred when I am finished my sentencing because he will be facing a fine and that is money out of his pocket which he could be using throughout the university year to maintain himself and that, as a result of the fine that I am going to be imposing, which he will have a considerable time to pay, he will have to make certain budgetary decisions going forward. [ 11 ] General deterrence is extremely important in these types of cases.

In the case law throughout and several cases that I have pronounced concerning the Fisheries Ac t , it is important for the public to know that the courts take very seriously violations of a regulated activity such as fisheries. There are many competing interests in our province and in the country in general with regard to fishing.

We have recreational fishers who want a share of the resource, we have commercial fishers who want a share of the resource, and First Nations people who want to share the resource both for food fisheries and for cultural and ceremonial purposes and for commercial fishing, as well, including being guides.

So everybody has to have their share. [ 12 ] In order for everybody to get their fair share, there has to be some way for those who enforce the Act , namely, the Fisheries Officers, to have a good sense of how much in the way of fish are being taken by each of the segments, and that is the purpose of the Regulations and the licencing requirements, to record the size, et cetera. All this information is of value to those who study fishery resources in order to try to estimate what the resource can sustain in the way of harvesting without becoming an endangered stock.

That is not to say that trying to predict this has its own challenges, trying to figure out how many animals there are at the bottom of the ocean when you cannot look down and count them makes for a very difficult modeling and projections from time to time and that is why in part we have such regulations. [ 13 ] We also have regulations so that people who go fishing both recreationally or commercially or for cultural and ceremonial purposes and food fisheries have some assurance that the resource will be there again in the future. Natural resources are quite precious in this country.

We live in a country that prides itself on its wilderness, its ample resources for hunting, its fishing resources for fishing, both in lakes and in the ocean, and most citizens believe that it is important for us to ensure that those who are given the permission, which is what a licence is, to fish, do so in a fashion that accords with the Regulations and the statute.

That deals with the issue of general deterrence. [ 14 ] So a fine has to be big enough so that perhaps if somebody reads about this decision or other decisions in their local paper or hears about it on television or radio or on any of the social media feeds, they will say, "I better not retain more than two halibut under 89 centimetres or one of them over 90 because if I do and I get caught, I am going to pay a big fine and I may," although the Crown is not seeking that in this decision, "I may lose my right to fish altogether." [ 15 ] Finally, the court has to denounce the behaviour and I do so quite strongly with regard to Mr.

Ward. I guess the blunt way of putting it is he should know better. He is a guide. When Mr. Bloggen shows up from Omaha and says, "I want to go halibut fishing," he

is relying on Mr. Ward to give him the correct information as to how to properly fish to maintain himself in the regulatory scheme because I do not imagine the fisherman from Omaha wants to end up having to talk to a Fisheries Officer about why his catch is not in compliance with the Regulations . [ 16 ] This is not Mr. Ward's first week of guiding as was the case in one of the other decisions.

He has had three years of this knowledge and, as such, he is expected by his clients, by his employer, by the community, and by the court to adhere to the Regulations because if he is prepared to be lackadaisical about that in any way, shape, or form, he either will encourage or permit his clients to do the same in certain circumstances and that has to be denounced. [ 17 ] Now, the Crown has said that he should pay a fine totalling $4,000, $2,000 on each count. The Crown is prepared to give Mr. Ward considerable time to pay that fine. Mr. Ward says the fine should be less.

He is suggesting an amount of approximately $2,000 or $1,000 per count. He does not object to there being an order under s. 79.2(

f) of the Fisheries Act that permits the court to designate that a certain portion of what otherwise would be a fine be sent to the Receiver General for the benefit of certain fisheries protection and restoration projects and initiatives. [ 18 ] Having considered everything that has been said to me and looking at the two counts that are before the court, I consider them to be different in so far as the penalty that needs to be imposed is concerned.

With regard to Count Number 1, I consider that to be less morally culpable than Count Number 2, and it is quite possible that people just forget to write things down and do so when they realize that they are going to have to be speaking to a Fisheries Officer and I accept that to be the case. With regard to Count Number 2, however, when one knows that you are either permitted to possess either one or maybe two halibut, to be in possession of four, particularly with the knowledge that Mr.

Ward is presumed to have, in my view, smacks of trying to benefit from breaching the Regulation and, as such, the fine for that should be larger. [ 19 ] The total penalty as between the two counts is going to be a total of $3,000. [ 20 ] Now, Ms. Switzer, I am going to need your assistance on this. My intention with regard to Count Number is to impose a fine of $200 and a payment under s. 79.2(

f) of $800. [ 21 ] MS. SWITZER: Right. [ 22 ] THE COURT: Count Number 2, the fine will be $400 and the contribution under s. 79.2(

f) will be $1,600. With regard to the fine amounts, my intention is to require those two amounts, the $200 and the $400, to be paid by August 30, 2020. Now, with regard to the contribution amounts of $800 and $1,600, my intention is that they are to be paid by August 30, 2021. Now, do you need anything special from me in the way of any special wording, Ms. Switzer? [ 23 ] MS. SWITZER: No, I am under the understanding that this is a 79.2(

f) order with amounts to reflect $800 on Count 1 and $1,600 on Count 2 payable no later than August 30, 2021, and that will be to the -- essentially directed towards the Queen Charlotte detachment of Fisheries and Oceans Canada and I will draft the order in the standard form and then forward it to the court without any counsel signing it and, once that is signed, I will forward a copy to Mr. Ward. [ 24 ] THE COURT: Okay, and then the fine amounts with the $200 on Count 1, $400 on Count 2, was August 30, 2020, to pay the fine. [ 25 ] MS. SWITZER: Yes. [ 26 ] THE COURT: Mr. Ward, please stand up.

Do you understand what I have just done, sir? [ 27 ] THE ACCUSED: Yes, Your Honour. [ 28 ] THE COURT: Okay, so the total amount you are going to have to come up with is $3,000. You are going to have to come up with $600 of it by August 30, 2020, and you are going to have to come up with the other $2,400 by August 30, 2021. Now, Ms.

Switzer will explain to you how the payments are made because that is a little bit complicated, it is not the same as paying a straight fine, and you are always free, of course, to pay the fine and the contribution amount sooner if you happen to come into some money or you get a job that pays you quite well and you want to get this over with, but there is no requirement on you to make any payment immediately.

I take into account you are a university student and you have costs to bear to attend university, but these amounts will be, of course, outstanding until they are paid and I am not imposing any sort of fishing prohibition on you at this point. [ 29 ] So do we need anything else, Ms. Switzer? [ 30 ] MS. SWITZER: No, thank you, Your Honour, and thank you very much for hearing this matter. [ 31 ] THE COURT: Mr. Ward, anything else from your end? [ 32 ] THE ACCUSED: Thank you, just -- [ 33 ] THE COURT: Make sure Ms.

Switzer and the court registry know your address so that the order can be sent to your mailing address once it has been processed and filed in the court registry. [ 34 ] THE ACCUSED: Yes, Your Honour. [ 35 ] THE COURT: Madam Clerk in Masset. [ 36 ] THE CLERK: Yes. [ 37 ] THE COURT: We are finished.

(REASONS FOR SENTENCE CONCLUDED)