R. v. Williams, 2022 BCPC 323

Citation: R. v. Williams 2022 BCPC 323 Date: 20220713 File No: 67807-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SAMMY ALVIN-RAYMOND JOHN WILLIAMS CHRISTOPHER ROBIN SCHILL ORAL REASONS FOR SENTENCE (Re Accused Williams) OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: C. Coulson Counsel for the Defendant: N. Elson Place of Hearing: North Vancouver , B.C.

Date of Hearing: May 27, 2022 Date of Judgment: July 13, 2022 Introduction: [ 1 ] This is the sentencing decision following a finding after trial that Sammy Alvin-Raymond Williams committed the offences set out in Counts 1, 2, 3, and 5 of Information 67807, charging him, (along with Robin Schill), that on or about the 2nd of March, 2020, in North Vancouver, he did: (

i) fish without a licence - an offence in breach of the Pacific Fishery Regulations and an offence under s. 78(

a) of the Fisheries Act, (count 1); (ii) place or set fishing gear or apparatus in any water, in this case, the Burrard Inlet, during a closed time - again, an offence under s. 78(

a) of the Fisheries Act , (count 2); (iii) possess fish, in this case, crab, caught in contravention of the Fisheries Act and thus committed an offence under s. 78(

a) of the Fisheries Act , (count 3); (iv) fish for a species of shellfish set out in Column I of

Schedule VII - Dungeness crab - in waters set out in Column II during a closed time in contravention of the Pacific Fishery Regulations - an offence under s. 78(

a) of the Fisheries Act , (count 5). [ 2 ] The facts, briefly, include that in the very early morning hours of March 2, 2020, Fisheries Officers caught Mr. Williams, along with Mr. Schill and another man, Mr. Steer, crab fishing from a boat in Burrard Inlet at the foot of Lonsdale Avenue. Burrard Inlet is always closed to crab fishing. [ 3 ] The boat they were fishing from had no navigational lights on and the traps they were using were unmarked.

Upon realizing that they had been spotted, one of the three men on the boat cut the line to a trap in the water leaving the trap at the bottom of the seafloor, thereby creating risk of death by starvation and predation to crabs entering the trap and unable to leave. [ 4 ] When the Fisheries Officers’ vessel approached the boat, the boat took off at high speed and a chase in the dark ensued, placing its occupants, other users of the darkened inlet, and the pursuing Fisheries Officers, all at risk. The boat was eventually caught, and its three occupants arrested.

Approximately 250 live Dungeness crab were located on the boat, packed into holding cages. There is no doubt that this was a for-profit operation. [ 5 ] At the time of Mr. Williams’ arrest, he was experiencing some physical distress due to his suffering from diabetes. He was cooperative with the police and was, ultimately, taken to the hospital and then released. Other Court Proceedings Arising out of the March 7 th Incident: [ 6 ] Mr.

Steer, who had a significant related record for Fisheries Act offences, was sentenced in the Supreme Court in relation to Fisheries Act charges arising from his involvement in this incident. Mr. Williams' boat, which was the boat used on March 2nd, was ordered forfeited by the Supreme Court justice under s. 72 of the Fisheries Act at that sentencing hearing. [ 7 ] Mr. Schill pleaded guilty in the Provincial Court to Count 6 on the Information – a charge of obstructing a Fisheries Officer - and was fined $5,000. This Sentencing Hearing [ 8 ] At this sentencing hearing, a full Gladue report was prepared and filed.

Mr. Williams is a member of the [redacted for publication] First Nation. His place of birth is near Campbell River, although the report sets out that he spent much of his childhood in more remote locations than that. The Parties’ Positions [ 9 ] The Crown says that the appropriate sentence here is a fine of $4,500 on each count, for a total of $18,000. In light of Mr. Williams' personal financial situation, the Crown says that his inability to pay that amount can be addressed by making a lengthy time-to- pay order. The Crown says that it considered the Gladue report in arriving at its position.

The Crown notes that under s. 78(

a) of the Fisheries Act , the maximum fine is $100,000 for each offence. [ 10 ] Crown counsel says that the primary objective of sentencing in a case such as this - an environmental offence involving illegal fishing for profit - is deterrence, relying on R. v. Terroco , 2005 ABCA 141 , (the reasoning of which has been adopted by our Court of Appeal in R. v. Brown , 2010 BCCA 225 ), and as well relying on R. v. Schafhauser , 2017 BCSC 2287 . As well, the Crown seeks a no- contact order with the two other men caught fishing with Mr.

Williams for a period of three years. [ 11 ] In addition to Schafhauser , Terroco , and Brown , the Crown relies on R. v. Tang ( 20 June 2018), 17427 (B.C.P.C.); R. v. Ordano (15 July 2014), 15799 (B.C.P.C.); R. v. Paul (3 February 2017), 31168 (B.C.P.C.); R. v. Steer (11 December 2013), 090 (B.C.P.C.); R. v. Perry , [2003] N.J. No. 27 , Newfoundland Provincial Court, and R. v. Masters (20 February 2017), 167621-1 and 2-A (B.C.P.C.). [ 12 ] Turning to Mr. Williams' position, counsel for Mr. Williams says that a fine of $2,500 total is appropriate in relation to this offender for these offences. He notes that Mr.

Williams is a fisher by background; that his family members have been fishers, and that

his culture is integrally tied to fishing activity. He notes that, as a result of the forfeiture ordered in the Steer sentencing, Mr. Williams' main source of earning a legitimate income - that is, his boat - is gone. According to Mr. Williams, he bought the boat with proceeds from a residential school survivor settlement which his father had received. [ 13 ] On behalf Mr. Williams, counsel says that, with a grade 10 education, living in [redacted for publication], there are few employment opportunities and that, while Mr.

Williams was working part-time at the fishing processing plant in [redacted for publication] this past spring, the work was expected to be seasonal. He says that, given his personal circumstances, his ability to pay a fine such as sought by the Crown is not realistic. As well, he says that there are significant mitigating factors consistent with a lower fine than imposed in relation to other offenders for similar offences, given the presence of significant Gladue factors which render him properly characterized as a “survivor”. [ 14 ] He also says that there is no evidence that Mr.

Williams was the operating mind of the operation and certainly no evidence that he was responsible for the high-speed chase through a darkened Burrard Inlet. [ 15 ] Finally, he says that the forfeiture of Mr. Williams' boat and motor is significant and relevant to arriving at the right sentence here. He puts the emphasis on Mr. Schill's fine at $5,000 and notes that in the decisions relied upon by the Crown, including Paul , Schafhauser , and Steer and Ordano , there was no forfeiture of vessel ordered and says that, in approaching the factor of totality, this is relevant in considering what fine to impose here.

The Issue [ 16 ] The main issue here is: what is the right sentence for these offences for this offender? The provisions of s. 718 through 718.2 and s. 734 of the Criminal Code apply as well as s. 78 and 72 of the Fisheries Act . Totality, parity, rehabilitation, deterrence, denunciation and restraint are all factors that must be considered here. [ 17 ] In arriving at the answer to that question, two other questions arise in this case: The first is, what is the appropriate approach to Mr.

Williams' financial circumstances in relation to arriving at a fine which will reflect the applicable sentencing principles and objectives? The second is, what is the impact of the evidence in the Gladue report on arriving at the appropriate sentence? I will turn to those questions first. (

i) The proper approach to Mr. Williams' financial circumstances on this sentencing [ 18 ] The Crown bears the burden of proof on the civil standard to establish that an offender has the ability to pay a given fine sought. Without an affirmative finding that an offender is able to pay the fine based on the evidence and information adduced under s. 720 through 724 of the Code , the fine cannot be imposed; (see: R. v. Topp , 2011 SCC 43 , (para. 20 ) and R. v. Hughes and Sampson , Prince Rupert 277471; 27749 (para’s. 67 & 68); s. 734(2) of the Criminal Code , discussed below). [ 19 ] In Sampson , Mr.

Sampson admitted that he had $25,000 which was the amount of the fine sought by the Crown there. The court imposed that fine with 28 months' time to pay, the time described as sufficient to permit the offender to fish for two fishing seasons to earn the monies to pay the fine, (see: paragraph 79). In imposing a $20,000 fine on the co-accused, Hughes, (who was of more limited means than Mr.

Sampson), rather than the $25,000 sought by Crown, the court had regard to his reported income for five years indicating taxable income of between $10,000 and $25,000 and gave him three years and four months to pay the $20,000. [ 20 ] In R. v. Paul , the court identified as relevant to the consideration of the appropriate fine under the Fisheries Act the offender's T1 income of $60,000 which was before the court. The court found that Mr. Paul had $60,000 equity in his home. Mr. Paul was 51 years old without a prior record.

He was a long-time commercial fisherman; he was seen crab fishing twice during a closed season, and he sold 41 crabs. He was fined a total of $10,000. [ 21 ] Crown counsel says that the $18,000 should be imposed on Mr. Williams and any difficulty with paying can be dealt with by giving a long period of time for Mr. Williams to pay the fine. Crown counsel relies on R. v. Master for this approach. [ 22 ] I am not persuaded that that is the appropriate approach unless the evidence satisfies me that it is likely that Mr. Williams will be able to pay a fine of $18,000 in a given timeframe.

In this case, there is no evidence such as admissions found in Sampson or tax returns which reflect Mr. Williams' financial means and ability to pay the $18,000 fine sought by the Crown. Rather, the information and evidence before me support the conclusion that Mr. Williams’ abilities to earn a significant sum of money now or in the reasonably near future are limited. The Gladue report reflects that he has no income. [ 23 ] In R. v. Young , 2004 BCSC 34 , in considering a

summary conviction sentence appeal, Justice Halfyard dismissed the appeal, noting that the trial judge had asked the appellant about his employment and income and concluded that he was unable to pay any significant fine. The penalty he ordered was the forfeiture of the items seized in the investigation: Mr. Young's boat and trailer, (worth between $800 and $900); the fishing gear on the boat, (worth between $300 and $400), and a pickup truck. The Crown had sought a $1,000 fine of forfeiture. The offender was a Haida man, 46 years old, without any record. [ 24 ] Turning to Mr.

Williams, as mentioned, he has been a fisher for years and is from a fisher family. His boat, the vessel he used to fish and earn his income, was the boat on which he and Mr. Steer and Mr. Schill were illegally crab fishing and, as mentioned, it was forfeited at the sentencing of Mr. Steer. While that was the predictable and foreseeable result of illegal fishing as Mr.

Williams chose to do, the practical impact is that he no longer has a boat from which to fish and earn a livelihood. [ 25 ] Documents obtained during the investigation show that he had paid $21,000 for the vessel and a further $12,000 for the motors. He says that he received the monies from his father who, in turn, had received it in a residential school survivor settlement. There is no evidence that he somehow earned the $33,000 and saved it such that an inference could be drawn that he has the capacity to earn and save large sums of money.

The Crown does not contest the information with regard to the source of funds used to purchase the boat. [ 26 ] At the time of sentencing submissions, Mr. Williams worked part-time and sporadically at the local fish plant, finning fish, in

[redacted for publication]. He expected this seasonal work to end at some point soon. Presumably, it would resume when seasonopenings resume. As well, it is likely that he will get some work fishing on other people's boats at some point. [27] Mr. Williams has a grade 10 education.

Given the violence, disharmony, and substance abuse that marked his childhood as setout in the Gladue report, it is almost certain that his opportunities to flourish at school and maximize his opportunities to learn andachieve skills to earn a decent income, apart from by fishing, were less than the opportunities of those of his schoolmates not dealingwith such disruptions. The Gladue report describes him as reporting difficulties with concentration and comprehension in school.

This isnot surprising given his childhood experience as described in the report. [28] He currently lives in [redacted for publication] with his spouse and two children, one of whom will return to the child’s mother atthe end of the summer. He is the father of four children. According to Mr. Williams, [redacted for publication]'s economy does notsustain a Tim Hortons. I used this as a rough measuring stick of the size of the community and the opportunities to earn an income evendoing modest work in the community. [29] I contrast Mr. Williams' opportunities to earn monies to pay a fine with the situation in R. v.

Sparrow & Grant, 2018 BCPC 53,where the offender was a member of the [redacted for publication] Band which was involved in employment opportunities for himrelevant to his ability to earn money and pay a fine, (see: para. 87). [30] I am not satisfied, when all of the information before me is considered, that Mr. Williams has the ability to pay an $18,000 fine. His livelihood is fishing, and his boat is gone. While he likely will get work on someone else's boat to fish at some point, there is noevidence before me as to what type of income that work will likely generate.

He has four children in total, two of whom live with himcurrently. He has self-medicated to address trauma reflected in the Gladue report and has limited education and thus limited means togenerate income apart from fishing. He lives in a relatively remote area of the province with limited opportunities to work outside thefishing industry, which is seasonal. The Crown has not established that he likely has the ability to pay the $18,000 fine sought. (ii) What is the impact of the evidence in the Gladue report on arriving at the appropriate sentence? [31] Mr.

Williams is an Aboriginal offender within the meaning of s. 718.2(

e) of the Criminal Code. This

section requires asentencing judge to exercise restraint, particularly with regard to incarceration. While the Crown seeks a fine, not incarceration, here, Iam satisfied that s. 734(5) of the Criminal Code makes the Gladue report filed herein relevant to restraint considerations, in addition to itsrelevance to a consideration of this offender's circumstances generally. [32] The subsections of s. 734 relevant to this case are: s. 734 (2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a courtmay fine an offender under this

section only if the court is satisfied that the offender is able to pay the fine or discharge it under section736.

(3) For the purposes of this

section and sections 734.1 to 737, a person is in default of payment of a fine if the fine has not been paid infull by the time set out in the order made under

section 734.1.

(4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with subsection (5), shall be deemedto be imposed in default of payment of the fine.

(5) The term of imprisonment referred to in subsection (4) is the lesser of (

a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which (

i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison,calculated in accordance with regulations made under subsection (7), and (ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the finewas imposed, and (

b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does notinclude a term of imprisonment, five years in the case of an indictable offence or two years less a day in the case of a

summaryconviction offence. [33] In Topp, the Supreme Court of Canada states, at paragraph 18: [18] The legislative purpose behind s. 734(2) is to prevent offenders from being fined amounts that they are truly unable to pay, and tocorrespondingly reduce the number of offenders who are incarcerated in default of payment, (emphasis added). [34] The case law requires a sentencing judge to take judicial notice of systemic effects of colonization, generally, in relation tosentencing Aboriginal offenders. This is discussed in the seminal case, R. v. Gladue, .

At paragraph 67 of that case, theSupreme Court of Canada states as follows: [67] The background factors which figure prominently in the causation of crime by aboriginal offenders are … now well known. Yearsof dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack ofopportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and otherfactors contribute to a higher incidence of crime and incarceration.

A disturbing account of these factors is set out by Professor TimQuigley, “Some Issues in Sentencing of Aboriginal Offenders”, in Continuing Poundmaker and Riel’s Quest (1994), at pp. 269-300.

Quigley ably describes the process whereby these various factors produce an overincarceration of aboriginal offenders, noting (at pp. 275-76) that “[t]he unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail.” [ 35 ] It is causation of the criminal behaviour that is relevant, in my view, to an assessment of Mr.

Williams' moral blameworthiness here even though what is under consideration is a resulting fine rather than resulting incarceration. In this case, there is specific evidence of the background factors described in paragraph 67 of Gladue : Mr. Williams experienced dislocation by placement in multiple foster homes outside of his Aboriginal community beginning at the age of ten. His paternal grandparents both went to the [redacted for publication] on Meares Island, as did his maternal grandmother, all from young ages for ten years or more.

His mother and maternal grandparents went to the [redacted for publication]. [ 36 ] Lack of opportunity and lack of education are also present here, as discussed: He grew up in a remote [redacted for publication] community. His childhood was disadvantaged, described in the Gladue report as fraught with exposure to physical and sexual violence, alcohol abuse, and overt discrimination. Mr. Williams began drinking alcohol at the age of twelve and as a child experienced blackouts.

Sentencing Principles & Objectives [ 37 ] With that set out, I will turn to the discussion of the principle and objectives of sentencing in relation to this offence and this offender. [ 38 ] The fundamental principle of sentencing is proportionality; that is, that a sentence be proportionate to the gravity of the offence and the offender's moral blameworthiness. [ 39 ] In the context of an environmental offence such as this, it is clear that the predominant sentencing objective is, as stated by the Crown, deterrence, (see: Schafhauser , Terroco , and Brown) .

Denunciation is also a significant consideration to reflect society's condemnation of the breaches of the law which are counter to each person's role as a steward of the environment for future generations, (see: Tang , para’s. 18, 19, and 24).

I agree with the Crown's position that poaching - which avoids all the costs associated with licenced commercial crab fishing - is a lucrative illegal activity and must attract a sentence which is likely to deter other offenders in like circumstances. [ 40 ] As mentioned, Terroco is the leading case with regard to how to approach environmental offence sentencings and was adopted by our Court of Appeal in Brown . Relevant factors include culpability, past involvement, acceptance of responsibility, and harm, both actual and potential.

Culpability ranges from intentional acts to “near misses.” [ 41 ] Here, there is no doubt that the offences were committed intentionally and were pre-planned. Mr. Williams is an experienced fisherman. I note that there were no navigational lights and the traps were unmarked, both consistent with efforts to avoid detection. However, I also find relevant to an assessment of Mr. Williams' culpability here, his background which I find attenuates his moral blameworthiness. Further, while the boat was owned by Mr. Williams, I am not satisfied that this indicates that he was the ringleader. Mr.

Steer was, apparently, controlling the boat when the offenders were detected by the Fisheries Officers and it appears that he was the driver of the boat during the evasive flight causing risk to its occupants, to DFO Officers, and other users of the inlet. [ 42 ] Mr. Williams' lack of prior record is mitigating. His decision to have a trial rather than plead guilty is a neutral factor on sentencing. [ 43 ] With regard to harm actual and harm risked, the crabs in the cages located on the boat appear to have all survived their removal from the water, but the potential risk was obvious and significant.

Further, there was real risk caused to other crabs by the leaving of the fourth trap on the bottom floor as, once crabs enter such an abandoned trap, they either starve or are killed by other crabs who are starving as a result of not being able to leave the trap and find another food source. [ 44 ] While having in mind deterrence and denunciation, I also note that where, as here, an offender has no prior record, rehabilitation is also a relevant consideration, (see: Hughes and Sampson, at para. 71). [ 45 ] With respect to the forfeiture of Mr.

Williams' vessel, I am of the view that it is relevant to a consideration of the sentence to be imposed here, and find support in that view in R. v. Sandover-Sly , 2002 BCCA 56 at paragraph 26 , (see: R. v. Craig , 2009 SCC 23 , (at para. 49 ). As well, I am satisfied that the forfeiture of the vessel and motor has a significant deterrent value here, noting that the vessel was valued by Mr. Williams at over $20,000, which was not contested by the Crown.

Decision [ 46 ] Having considered all of the above, I am of the view that the appropriate sentence in relation to these offences and this offender to address the objectives of deterrence, general and specific denunciation, and rehabilitation proportionate to the gravity of the offence and his moral blameworthiness is as follows: (

i) Mr. Williams, you will pay a fine of $1,500 per count for a total of $6,000. You have three years to pay that fine. (ii) You will be placed on probation for a period of three years. a. The first term is you must keep the peace and be of good behaviour. b. Next, you must appear before the court when required to do so by the court. c. You must not change your name without notifying the court.

d. You must have no contact direct or indirect with Christopher Robin Schill or Scott Stanley Matthew Steer for the full time of the probation order. e. You must report to a probation officer no later than 4:00 p.m. by telephone tomorrow to the North Vancouver Community Corrections, Suite 100, 233 West 1st Street, North Vancouver, British Columbia, phone number, 604-981-0300, and thereafter as directed by your probation officer which may include reporting by telephone to the Community Corrections Office closest to Gold River, f.

You must complete to the satisfaction of your probation officer 60 hours of community work within the first 12 months of your probation order. [ 47 ] I will pause to note that if Mr. Williams' vessel had not been ordered forfeited in another related proceeding, its forfeiture under s. 72 of the Fisheries Act would have been ordered here. _____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia