R. v. Zhang, 2022 BCPC 275

R. v. Zhang 2022 BCPC 275 Date: 20221128 File No: 68579-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JIAN LUN AARON ZHANG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: T. Lattimer Appearing for the Defendant: W. Zhou and T. Tam, LSLAP Place of Hearing: North Vancouver , B.C. Date of Hearing: July 4, 2022 Date of Judgment: November 28, 2022

[ 1 ] Jian Lun Aaron Zhang pleaded guilty to three counts being: Count 3: Jian Lun Aaron ZHANG, on or about the 30 th day of July, 2020, in Canadian Fisheries Waters near the District of West Vancouver, in the Provincial of British Columbia, did unlawfully fish in a closed area, to wit: the Queen Charlotte Channel 1 Glass Sponge Reef, contrary to s. 34(1) of the British Columbia Sport Fishing Regulations , and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . Count 5: Jian Lun Aaron ZHANG, on or about the 30 th day of July, 2020, in Canadian Fisheries Waters near the District of West Vancouver, in the Provincial of British Columbia, did unlawfully fish for prawn or shrimp with greater than four traps, contrary to s. 40(1) of the British Columbia Sport Fishing Regulations , and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . Count 6: Jian Lun Aaron ZHANG, on or about the 30 th day of July, 2020, in Canadian Fisheries Waters near the District of West Vancouver, in the Provincial of British Columbia, did fish for prawn or shrimp without correctly marking a float or buoy, contrary to s. 40(2) of the British Columbia Sport Fishing Regulations , and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . [ 2 ] He entered his guilty pleas on July 4, 2022. [ 3 ] The primary issue for determination is the total amount of fines that should be imposed. [ 4 ] Crown submits that a total of $18,000 is appropriate. The offender submits that he does not have the ability to pay more than a total fine of $1,500 for all three counts. Circumstances of the Offences [ 5 ] DFO officers found Mr. Zhang on his own boat in Howe Sound. The officers conducted an inspection.

They did so as their GPS plotter showed the boat was in the Queen Charlotte 1 Glass Sponge Reef closure area. [ 6 ] At the time the officers encountered Mr. Zhang, he was pulling in a prawn trap. Mr. Zhang identified himself as the owner of the boat and the fishing gear being used. All six people on board were properly licensed. He directed the officers to four other crab or prawn traps, all of which were located within the same Glass Sponge Reef closure. One trap fell off the line as it was being hauled up and sank. [ 7 ] The buoys were marked with the name “Allen”, which is not Mr.

Zhang’s legal name as set out on his license and which he was required to use. It is however the anglicized name he uses. His cell number was properly written on the buoys. [ 8 ] In total, seven prawn traps were seized, along with three ropes and three sets of buoys. As Mr. Zhang had eight prawn traps in total, he was in possession of double the allowable number. The officers also seized 474 shrimp and 49 prawn, which had been illegally harvested. They also found perch, flounder, rockfish, Dungeness crabs and six dogfish cut up in pieces.

Impact Statement [ 9 ] The Department of Fisheries and Oceans provided an Impact Statement. It addresses the ecological importance of Glass Sponge Reefs, due to their ability to filter vast amounts of water and as they provide habitat for many other species. They are rare and globally unique ecosystems. As their name suggests, they are fragile as their skeletons are created with silicon dioxide. They grow very slowly and are easily damaged by contact with bottom fishing gear. [ 10 ] There is not only local but also international interest in preserving Glass Sponge Reefs.

The Queen Charlotte reef was assessed to have a unique community structure and ranked third in species richness of nine originally identified reefs in Howe Sound. The Applicable Law [ 11 ] The purposes and principles of sentence set out in ss. 718 to 718.21 of the Criminal Code must be considered and applied in regulatory matters. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more objectives.

These objectives include denunciation, deterrence of this offender and others, separating the offender from society where necessary, rehabilitation, repairing harm, promoting a sense of responsibility in the offender, and acknowledging the harm caused to the victim and the community. [ 12 ] In determining a fit sentence, the Court must consider the aggravating and mitigating circumstances, all available sanctions other than imprisonment that are reasonable in the circumstances, and the least restrictive sanction that is appropriate.

Additionally, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. When considering a monetary penalty, the Court must also consider the ability of the offender to pay. [ 13 ] The overarching principle is that of proportionality. Any sentence imposed must be proportional to the gravity of the offence and the degree of responsibility of the offender. [ 14 ] In R. v.

Schafhauser , 2017 BCSC 2287 , the Court summarized the principles and factors to be considered in determining an appropriate penalty in regulatory matters aimed at protecting fisheries or the environment: [11] The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must be taken seriously. Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused and

generally of other members of the public who are inclined to act in the same manner. Penalties must be sufficiently severe tocommunicate to the accused that there is a high risk associated with their illegal activities both for the resource they are affecting and tothemselves for their conduct, (see R. v. Cox; [1999] N.J. 264, NFLPC), R. v. Forsey, the latter at [1999] N.J. No. 264 (N.L.P.C.) atparagraph 20). [12] In this instance, the sentencing judge appropriately highlighted the need for an appropriate sentence to deter similar conduct bythe commercial fishing community generally and specifically by Mr.

Schafhauser. I note that many of the authorities refer to the fact thata penalty should be more than simply a cost of doing business. In particular, in this instance, that is significant because this is aregulatory statute designed to preserve a valuable resource. In sentencing on regulatory offences, our Court of Appeal has accepted thefollowing sentencing principles: culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, anddeterrence (see R. v.

Terroco Industries Limited, 2005 ABCA 141 , 2005 196 C.C.C. (3d) 293, a decision of the Alberta Courtof Appeal, pages 304 to 311; and R. v. Brown, 2010 BCCA 225, at paragraph 13). [15] In Terroco, the Court found the existence, potential, duration and degree of harm are factors to be fully considered in sentencingfor environmental offences. If actual harm is established, that would be an aggravating factor, especially when the harm is a readilyforeseeable consequence of the underlying action. In many environmental offences, harm is not easily identified.

However, the absenceof ascertainable harm is not a mitigating but merely a neutral factor. [16] In R. v. Morash, 1994 CarswellNS 511, the Nova Scotia Court of Appeal upheld a $14,000 fine (approximately $25,000 today)and a three-month prohibition from fishing imposed for Fishing in a Closed Area. The offender had previous convictions for offencesunder the FA. At paragraph 12, the Court observed: ….In 1991 Parliament increased the maximum fines for

summary conviction offences under s. 78(

a) of the Fisheries Act from $5,000 to$100,000. This is a clear indication that Parliament viewed as serious the need to curtail illegal fishing off the east coast of Canada. Theamount of the fine imposed is reasonable. Furthermore, it is quite common for judges imposing sentences for violation of the FisheriesAct to impose forfeiture of the sales proceeds of catches; this is provided for in the Act as is the right of a sentencing judge to imposesuspensions on licenses. I agree with the comments of counsel for the respondent where he states: " ...the fishing industry is self-enforcing.

Fisheries & Oceans has neither the manpower nor the time to inspect the fishing activities of allfishers. Those who do act within the law have a right to expect that those who do not do so will be sanctioned in such a way as to makecompliant behaviour the only reasonable and practical option. Fines alone cannot do this. They can too easily become a mere cost ofdoing business. Licence sanctions, on the other hand, strike at the very heart of the wrongdoers privileged positions." (Emphasis added) [17] In R. v.

Tang et al, (unreported), June 20, 2018, Sechelt Registry 17427-1, the Court observed: [18] In my view, there are additional sentencing principles related to protection of the fishery. The public interest in protecting thefishery is hardly a trifling matter, whether that fishery is a commercial fishery or a recreational fishery. [19] We are stewards of our environment. We have an obligation to others in society and to future generations to be diligent inmanaging the resources that we have inherited.

Social interests override individual entitlements and accountable stewardship isdemanded and expected, not merely hoped for from those who choose to fish. [20] We all have to understand that there really are just a limited number of fish in the sea.

We have to understand that our activitiesimpact the species we choose to harvest. [21] As noted in the impact statement, given the large number of recreational fishery participants in B.C., the effect of illegal fishing,including exceeding fishing limits by even a small proportion of recreational harvesters, can have a significant negative impact on thefisheries resource. What we have seen with respect to the yellow eye rockfish from when this offence was committed in May of 2017 totoday's date is that we are no longer able to possess rockfish. [22] Sentencing ranges shift.

There was a time when low fines were imposed for drinking and driving offences.

In response tocommunity concerns, Parliament stepped in and, over the years, has imposed and increased the mandatory minimum fine. [23] The simple proposition is, is that if more people cared enough to follow the fishing regulations, there would be more fish in thesea. [24] The failure to follow fishing regulations is serious and, as stewards of our environment, it is incumbent on the court to imposefines that reflect society's condemnation of a serious environmental issue. [18] The Tang et al matter involved fishing for rockfish in a closed area and $5,000 in fines and forfeiture of the vessel used wasordered against the primary offender. [19] With respect to the principle of restraint in regulatory matters, any penalty must be significant enough to make clear thatcompliance will prove to be more economical than non-compliance and therefore must amount to much more than “the cost of doingbusiness”. [20] “The deliberate harvesting of seafood in a closed area does call for a significant judicial response”: R. v.

McKinnell Fishing Ltd.,2017 BCPC 236 at para 50. Deliberately harvesting prawn or bottom fishing in a Glass Sponge Reef closure calls for an even greater judicial response due the potential for lasting harm: R. v. Bullock, (unreported), May 27th 2019, Prince Rupert Registry # 29189. [21] Bullock specifically addresses whether offences involving fishing in glass sponge reef closure areas should be considered anaggravating factor in the determination of an appropriate penalty. In that matter, Mr.

Bullock did not check Fisheries Notices regularlyand inadvertently erred when inputting the coordinates for the closed areas in his GPS system. He was found bottom fishing for halibutover a glass sponge reef.

[ 22 ] Mr. Bullock entered a guilty plea and was remorseful. He had a history of various offences over 22 years under the FA or the Regulations , which the Court found to be minor in nature. In 2014, he was convicted of offences relating to the reporting of salmon caught and retention of salmon heads. A $3,000 fine was imposed as well as a penalty of $10,000 under s. 79.2(f). [ 23 ] The Crown had submitted that a fine of $50,000.00 should be imposed. In light of the offender’s attenuated level of culpability, his guilty plea and remorse, the Court imposed a $25,000.00 fine. A further $20,000.00 penalty pursuant to s. 79.2(

f) was imposed, which was the estimated value of the net profit on the fish caught and sold. [ 24 ] The range of sentence was found to be from $2,300 to $95,000. [ 25 ] The Court found that because of the potential for harm to the glass sponge reef, bottom fishing in a sponge reef closure should be seen as more serious than other boundary violations.

The Court found that intentional fishing in a glass sponge reef closure should be seen to heighten the culpability of the offender and in such circumstances, a $50,000.00 fine would, absent mitigation, be necessary to meet the principles of denunciation and deterrence. [ 26 ] R. v. Zhu , 2019 BCPC 388 dealt with a number of offences, which occurred over the course of 13 months. In June of 2017, Mr. Zhu was acting as a recreational fishing guide.

He set four shrimp traps so close to the border of a glass sponge reef closure that he ended up dragging them across the bottom and onto the reef before bringing them to the surface. There was a glass sponge stuck to one of the traps when it was brought to the surface. He was also in possession of undersize crab and undersize ling cod, and did not have a current license. A year later, he was found in possession of 18 undersize crabs and a few weeks after that, was inspected and found in possession of sea cucumber, which had been caught by a hook. [ 27 ] Mr. Zhu had received six tickets between 2004 and 2007.

In 2007, he was convicted of possessing illegally caught fish and was fined $7,000.00. [ 28 ] A joint submission was acceded to, for fines totalling $25,000.00 and a suspension for 6½ months. A $10,000.00 fine was imposed for the count relating to Fishing in a Closed Time. [ 29 ] In R. v. Vu, Vukic and Vukic (unreported, November 3 2020, North Vancouver Registry #67131-2-C), the Court acceded to a joint submission for a $25,000 fine for prawn fishing in a sponge reef closure in Howe Sound. The offenders entered guilty pleas and had no history of violations.

They had been cooperative and the FO’s involved accepted they had made an “honest error” when plotting the closures. [ 30 ] In R. v. Tram , 2019 BCPC 271 , a $21,000 total penalty was imposed with respect to three counts relating to fishing for prawn in a closed area. A guilty plea had been entered, the offender had been cooperative during the investigation and was remorseful. He had a history of violations and warnings. [ 31 ] In R. v. Le , 2019 BCPC 116 , the Court imposed a $20,000 fine and made an order under s. 79.2 for forfeiture of $9,000 in profit, in addition to a four month prohibition. Mr.

Le was an experienced commercial crab fisher who entered guilty pleas to four offences relating to failure to have or comply with a licence and selling illegally caught crab. He had a history of violations under the FA or Regulations as well as a warning. The Court reviewed a number of cases with fines which ranged from $5,000 to $25,000 for FA violations. [ 32 ] In McKinnell , the Court reviewed a number of authorities with respect to the range of sentence at paragraphs 17 to 30 where fines from $8,000 to $50,000, as well as forfeiture of profits were imposed.

The offences involved fishing in conservation and contamination closures. [ 33 ] In R. v. Kern (unreported, November 27 th 2007, Port Alberni Registry #40028), a fine of $12,500 was imposed where the offender inadvertently fished for lingcod in an area closed for conservation purposes. A guilty plea was entered on the trial date. The offender had one previous conviction where a fine of $7,500 had been imposed. [ 34 ] In R. v.

Plensky (unreported, May 13 th 2015, Port Hardy Registry #15996 and Queen Charlotte Registry #6326), total fines of $23,000 were imposed following a joint submission on a guilty plea for two separate incidents of fishing in rockfish conservation areas. The offences were the result of inadvertence. The offender had two prior FA violations. [ 35 ] In R. v. Thompson , 2017 BCPC 351 , fines totalling $25,000 and forfeiture of $19,000 from the proceeds of sale were imposed following a guilty plea to fishing in a rockfish conservation area.

The offence was not intentional but was found to have been the result of recklessness. The offender had five prior technical violations under the FA . [ 36 ] In R. v. Steer (unreported, December 11 th 2013, Masset Registry #6090), the Court acceded to a joint submission and imposed a $20,000 fine following a guilty plea to crab fishing the day before the opening. There is no reference to the offender having a history of violations and a guilty plea was entered. [ 37 ] Schafhauser was a decision on an appeal from sentence.

The offences involved setting gear the day before a chinook salmon opening and lying to FO’s about whether the gear had any hooks and for exceeding a catch quota. A guilty plea was entered. The offender had a history of violations. The Court found the Judge who imposed sentence did not err in finding the offender was highly culpable or in imposing a $10,000 fine.

Aggravating and Mitigating Factors [ 38 ] The aggravating factors are the number of traps Mr Zhang was using, that he possessed a significant amount of bi-catch, in particular rockfish, and that he was bottom fishing over top of a glass sponge reef in a closed area. [ 39 ] The mitigating factor is that Mr Zhang pleaded guilty. However, he did not do so until the day of trial.

Circumstances of the Offender [ 40 ] Mr. Zhang has one prior Sport Fishing Regulations ticket for using prohibited gear from July of 2019. A $150.00 fine was imposed. [ 41 ] Mr. Zhang is 42 years of age. He immigrated to Canada in 2006. He is divorced and has a 16-year-old child with his former spouse and a five-year-old child with his current spouse. His parents and a grandmother live in China. [ 42 ] He has the equivalent of a Grade 9 education. He worked on farms and in restaurants after arriving in Canada. He then worked in a garment factory. He said he earned $33,000 dollars a year from that employment.

He recently changed employment and earned $63,792 in 2021. [ 43 ] His competency in English remains limited. He suggested he did not understand the closures or the importance of complying with them due to his limited comprehension. [ 44 ] Mr Zhang submitted that he pays $400 a month in child support. He said he also sends money to his parents in China. [ 45 ] His spouse earns approximately $20,000 a year doing house cleaning and childcare. [ 46 ] Mr. Zhang was operating a 1999 26.8 foot Grady White sport fishing boat with twin 225 horse Yamaha engines.

He purchased a share in the boat in 2016 along with a number of friends. He paid $4,000 and contributed to the fuel cost, servicing and storage of the boat until it was sold in March of 2022 for $35,000. His share of the proceeds would have been approximately $5000. [ 47 ] Mr. Zhang currently has just under $14,000 in savings. Analysis and Conclusion [ 48 ] Mr Zhang had a duty to inform himself of the closed areas.

If he could not understand the information, it was his responsibility to have the closures and other regulations explained to him. [ 49 ] He submitted that he set his traps outside the closed area but they drifted into the closed area. This explanation for the offences does not serve to reduce his moral culpability.

To the contrary, it suggests he set his traps at the edge of a closed area and allowed those traps to drag across the bottom and over top of a glass sponge reef causing even more damage. [ 50 ] The fine sought by the Crown is well within the range of fines, which have been imposed for similar offences and similar offenders. Mr. Zhang is fully culpable for the offences committed. The penalties imposed for fishing in a Glass Sponge Reef closure are higher than those imposed for fishing in closures put in place for species conservation purposes. [ 51 ] On the evidence, Mr.

Zhang is well able to pay the fine suggested by the Crown. He has savings and the proceeds from the sale of the boat which together are sufficient to pay the total amount of fine suggested. In any event, the offender can be given ample time to pay to address any financial challenges created by the imposition of a fine. [ 52 ] The Crown is also granted forfeiture of the fishing gear seized and a separate Order will be entered in this regard. _____________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia