R. v. Henderson, 2022 BCPC 93

Citation: R. v. Henderson 2022 BCPC 93 Date: 20220525 File No: 68584-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JOHN HOWARD TROY HENDERSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: M. Greene by MS Teams Counsel for the Defendant: D. Lawrence Place of Hearing: Sechelt , B.C. Date of Hearing: March 22, 2022 Date of Sentence: May 25, 2022

INTRODUCTION [ 1 ] John Howard Troy Henderson has pled guilty to placing or setting prawn traps in Canadian Fisheries Waters during a closed time. That is contrary to s. 25(1) of the Fisheries Act and thereby an offence contrary to s. 78(

a) of the Fisheries Act . A BRIEF

SUMMARY OF THE FACTS [ 2 ] The Defence Islands Glass Sponge Reef area in Howe Sound (hereinafter referred to as “The Reef”) has been closed to commercial and recreational bottom-contact fishing since June 12, 2015. [ 3 ] On May 29, 2019 Fishery officers conducted a patrol in The Reef. As they approached a buoy for inspection, the propeller of the patrol vessel got caught in the buoy line which was floating. The buoy had the markings required by the prawn commercial licence conditions including “PRN”, the vessel registration number and the boat’s name “Aggressor”. [ 4 ] The Fishery officers determined that Mr.

Henderson was the owner of the Aggressor and notified him that he had set a string of prawn traps within the closure boundary of The Reef. Mr. Henderson confirmed the traps were his and told the Fishery officers that he had no idea there was a glass sponge reef there. [ 5 ] The Fishery officers observed a second buoy right outside The Reef closure area. The Fishery officers noted the buoy was also marked with the same vessel registration number as the other buoy making it likely to be the other end of the string of prawn traps. The line of this buoy was also floating. [ 6 ] On October 8, 2019 Mr.

Henderson provided a statement to Fishery officers. He admitted that he was the skipper of the Aggressor on May 29, 2019 and that he had placed the string of traps in The Reef closure area that day. Mr. Henderson also told the Fishery officers that he believed that there were forty-nine traps on the string. He said that he was unaware of The Reef closure and it was not his intention to set the traps in a closed area. THE POSITIONS OF THE PARTIES [ 7 ] Crown counsel submits that considering Mr.

Henderson’s high level of culpability, his prior record, the significant potential for harm to The Reef and that deterrence is the primary sentencing consideration, the appropriate penalty is a fine of $50,000. [ 8 ] Defence counsel submits that considering Mr. Henderson was unaware of the closure, his acceptance of responsibility, the fact that the traps were removed within a day and that it is not known how many of the forty-nine traps were actually in the closed area, that the appropriate fine is $10,000.

Defence counsel further submits that the sentence proposed by the Crown is excessive considering the greater number of traps used by the fishers in previous cases and the fines imposed in those cases. GENERAL SENTENCING PRINCIPLES [ 9 ] Sentencing is an individualized process where the Court must not only take into account the circumstances of the offence but also the circumstances of the offender.

Certain principles of sentencing will receive more emphasis than others depending on the nature of the offence committed. [ 10 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

This is to be achieved by imposing sentences which have inter alia the objectives of separating offenders from society where necessary, denouncing unlawful conduct, general deterrence, rehabilitation, promoting a sense of responsibilities in offenders, and acknowledgment of the harm done. [ 11 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 12 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 13 ] The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

FISHERIES ACT SENTENCING PRINCIPLES [ 14 ] Protection of the fishery is of the utmost importance. The public interest in protecting the fishery is hardly a trifling matter whether that fishery is a commercial fishery or a recreational fishery. We are stewards of our environment. We have an obligation to others in society and to future generations to be diligent in managing the resources that we have inherited. Societal interests override individual entitlement and accountable stewardship is demanded and expected, not merely hoped for, from those who choose to fish. [ 15 ] In R. v.

Schafhauser , 2017 BCSC 2287 , Mr. Justice Punnett states at paragraph 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 is 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 to communicate to the accused that there is a high risk associated with their illegal activities… [ 16 ] In sentencing on regulatory offences, our Court of Appeal has directed the court to specifically consider: (

i) the culpability of the offender; (ii) the offender’s prior record;

(iii) whether the offender has accepted responsibility and is remorseful and (iv) the existence, potential, duration and degree of harm. See R. v. Schafhauser at paragraph 12 . THE RANGE OF SENTENCE [ 17 ] Based on previous cases, the range of sentence is a fine of between $15,000 and $50,000 for cases where actual harm has not be identified. See R. v. Bullock , unreported Prince Rupert Registry 29189-1, May 27, 2019 BCPC at paragraphs 13 and 26. However, as courts increasingly come to fully appreciate the damage caused by illegal harvesting, sentences have increased. THE BACKGROUND AND CIRCUMSTANCES OF MR.

HENDERSON [ 18 ] Mr. Henderson is fifty years old. He began fishing at the age of sixteen. Mr. Henderson is still involved in the commercial fishery and is the owner of the Aggressor. ANALYSIS a. Sentencing Principles [ 19 ] The primary sentencing principles are specific and general deterrence. b. Aggravating and Mitigating Factors [ 20 ] It is aggravating that Mr. Henderson did not ensure that the trap lines and ground lines were not floating. In this case, the propeller of the patrol vessel got caught in the buoy line due to the fact that the buoy line was floating.

A second aggravating factor is The Reef is a delicate site that is not easily rejuvenated. It is mitigating that Mr. Henderson has accepted responsibility and entered an early guilty plea. A second mitigating factor is it has been almost three years since this offence and there have been no further infractions. c. Culpability [ 21 ] Defence counsel submits that Mr. Henderson was negligent. Defence counsel acknowledges that Mr. Henderson was obliged to inform himself of the areas in which fishing was prohibited and he did not do so. Defence counsel suggests that Mr.

Henderson’s culpability is lower than, for example, someone who knew the regulations and intentionally violated them. With respect I do not agree. Mr. Henderson’s culpability is at the higher end of the range. Mr. Henderson has chosen to participate in a highly regulated industry. He had an obligation to inform himself of the closures. The Reef has been closed to the commercial fishery since June 2015. Mr. Henderson has been fishing for many years. It is my determination that Mr. Henderson’s culpability is to the high end of the range. d. Prior Record [ 22 ] Mr.

Henderson was convicted in November 2000 for three Fishery Act offences and in July 2002 of two Fishery Act offences. In addition, Mr. Henderson has been issued seven warnings. e. Acceptance of Responsibility [ 23 ] Mr. Henderson accepts responsibility for these offences and has entered an early guilty plea. Further, Mr. Henderson told the Court that he is making himself more aware of the Fishery Regulations and where fishing is prohibited. Mr. Henderson told the Court that “I am doing my due diligence”. f. Harm [ 24 ] In this case, no actual harm has been identified.

However, the absence of ascertainable harm is not a mitigating factor. It is a neutral factor. See R. v. Terroco Industries Ltd. , 2005 ABCA 141 at paragraph 47 . [ 25 ] Glass sponges are fragile, rare, filter feeding animals which have skeletons made of glass. They are slow growing and long lived. Some species live for over two hundred years.

Reef building glass sponges were common two hundred million years ago but were thought to be extinct until discovered in British Columbia and Washington State in the late 1980’s. [ 26 ] Glass sponges have rigid glass skeletons that remain after the individual sponges die and new sponges settle on these skeletons creating mounds or reefs.

Glass sponges can be up to 19 metres high and over a kilometre wide. [ 27 ] Sponge reefs are ancient and unique ecosystems that provide important habitat for a variety of marine species including spot prawns, rock fish, herring, halibut and sharks. [ 28 ] Canada has international obligations to protect glass sponge reefs pursuant to the United Nations Convention On Biological Diversity and the United Nations Food and Agricultural Organization Code Of Conduct for Responsible Fisheries. [ 29 ] Prawn fishing in glass sponge reef areas may damage or destroy the rare, sensitive and slow growing glass sponges and the reefs that they form.

Prawn traps can break off pieces of sponge on contact and/or disrupt sediment which can negatively impact the sponges’ ability to filter, feed and grow. [ 30 ] The Reef is a delicate site that is not easily rejuvenated. This is a significant aggravating factor. See R. v. Terroco at paragraph 49. This creates the potential for substantial harm and calls for a more severe sentence. THE SENTENCE TO BE IMPOSED

[ 31 ] Defence counsel submits that the fishers in R. v. Bullock and R. v. Vu et al , unreported North Vancouver Registry 67131-2-C November 3, 2020 had far more traps in the water and therefore the potential for harm was much greater than in this case. Mr. Bullock had approximately 350 traps and the fishers in Vu et al had approximately 100 traps. On that basis, defence counsel submits that a fine lower than what was imposed in those cases is appropriate. [ 32 ] However, Mr. Henderson’s culpability is much higher than Mr. Bullock’s and the fishers in Vu et al.

Further, the fishers in Vu et al were not experienced fishers like Mr. Henderson. [ 33 ] The failure to follow fishing regulations is serious. The Court must impose a fine that reflects society’s condemnation of a serious environmental issue. [ 34 ] Considering the sentencing principles I have referred to, the aggravating and mitigating factors, Mr.

Henderson’s higher level of culpability and the significant potential for harm, it is my judgment that the sentence proposed by defence counsel, a fine of $10,000 is not within the appropriate range of sentence. [ 35 ] Balancing the following factors: the predominate sentencing principles, Mr. Henderson’s high level of culpability, the significant potential for harm, the aggravating factor of the floating lines, and to a limited extent, Mr. Henderson’s prior record and the significant mitigating factors including Mr.

Henderson’s stated commitment to inform himself and abide by the Fishery regulations the appropriate sentence and the sentence I now impose is a fine of $40,000 to be paid as follows: $8,000 payable by May 31, 2023, $8,000 payable by May 31, 2024, $8,000 payable by May 31, 2025, $8,000 payable by May 31, 2026, and $8,000 payable by May 31, 2027. ___________________________ The Honourable Judge S. Merrick Provincial Court of British Columbia