R. v. Munro, 2023 BCPC 4

Citation: R. v. Munro 2023 BCPC 4 Date: 20230106 File No: 6930-1 Registry: Masset IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ADAM THOMAS MUNRO AND 605463 B.C. LTD. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Federal Crown Counsel A. Switzer Counsel for the Defendant: I. Knapp Place of Hearing: Prince Rupert , B.C. Date of Hearing: December 5, 2022 Date of Judgment: January 6, 2023 [ 1 ] On April 8, 2022, after a multiday trial, I found that the Public Prosecution Service of Canada ("PPSC") had proven beyond a reasonable doubt that Adam Thomas Munro and 605463 B.C. Ltd. committed the offences alleged in Court Information 6930-1:

Count 1 Between July 22, 2018 and August 11, 2018, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority or a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of licence, to wit: fishing for Chinook shall cease when the maximum set out in subsection 1(1)(a)(

i) is reached, contrary to Section 22(7) of the Fishery (General) Regulations , and did thereby commit an offence contrary to s. 78(

a) of the Fisheries Act . Count 2 Between April 30, 2019 and July 17, 2019, at or near the Village of Masset, in the Province of British Columbia, while carrying out activities under the authority of a licence, to wit, Salmon Area F Salmon Troll Licence 2018, did contravene or fail to comply with a condition of licence, to wit: the licence holder shall ensure that all paper harvest logs issued are delivered to the catch reporting service provider by April 30, 2019, contrary to s. 22(7) of the Fishery (General) Regulations , and did thereby commit an offence contrary to s. 78(

a) of the Fisheries Act . Count 3 Between July 22, 2018 and August 30, 2018, at or near the Village of Masset, in the Province of British Columbia, did sell fish caught in contravention of the Fisheries Act or its regulations contrary to s. 33 of the Fisheries Act , and did thereby commit an offence contrary to s. 78(

a) of the Fisheries Act . Count 4 Between July 22, 2018 and August 30, 2018, at or near the Village of Masset, in the Province of British Columbia, did possess fish caught in contravention of the Fisheries Act or its regulations, contrary to s. 33 of the Fisheries Act , and did thereby commit an offence contrary to s. 78(

a) of the Fisheries Act . Facts [ 2 ] The neutral citation for my Reasons for Judgment , which includes the full facts of the case, is 2022 BCPC 77 . [ 3 ] In brief, 605463 B.C. Ltd. owned and operated a commercial fishing vessel Winter Wind . 605463 B.C. Ltd. is an incorporated British Columbia company. Michael Andrew Bullock is the sole director and officer of 605463 B.C. Ltd. Bullock was the contact owner with the Department of Fisheries and Oceans for the Winter Wind .

On July 22, 2018, and August 11, 2018, Munro was the skipper, also known as the vessel master, of the Winter Wind . [ 4 ] In 2018, the Winter Wind had a salmon/troll licence with conditions of licence attached, allowing the Winter Wind to retain a maximum of 0.4149 percent of the 2018 Area F Total Allowable Catch ("TAC") of Chinook salmon. In 2018, 0.4149 percent equalled 390 Chinook salmon. [ 5 ] On July 22, 2018, Munro and 605463 B.C. Ltd. offloaded 346 Chinook salmon caught on the Winter Wind .

In practical terms, as a result of catching and offloading 346 salmon on July 22, 2018, the conditions of licence allowed the Winter Wind to catch and offload a further 44 Chinook salmon unless another licence holder transferred a share of their TAC to the Winter Wind . [ 6 ] Although a licence holder's TAC cannot be carried from one year to the next, it is a common practice in British Columbia for licence holders in the commercial fishery to transfer a share of their TAC to another licence holder. The conditions of licence specifically allowed for such a practice. Bullock and 605463 B.C.

Ltd. regularly participated in the practice. [ 7 ] Fisheries and Oceans Canada ("DFO") is not involved with the licence holders' negotiations or financial dealings concerning the decision to transfer a share. As such, the DFO is unaware of the terms agreed to by the parties. All that matters to the DFO is that a valid application to transfer a share is submitted to them. Upon receiving the valid application to transfer a share, the DFO processes the application. Upon approval, the DFO assigns a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation.

In the Winter Wind 's case, the conditions of licence allowed the Winter Wind to acquire a maximum total uncaught quota equal to three Individual Transferrable Quotas, which equates to 1.245 percent of the 2018 Area F TAC. In other words, 1,170 Chinook salmon. [ 8 ] Sometime before July 22, 2018, as in previous years, Bullock relied upon his ex-wife to arrange for 605463 B.C. Ltd. to purchase another commercial fishing licence holder's 2018 Area F TAC of Chinook salmon. In cooperation with Nick at 7 Seas, Bullock's ex-wife arranged with 7 Seas and a fishing licence holder named Chinalibut for 605463 B.C.

Ltd. to pay $4,000 for Chinalibut's 0.4149 percent share of the 2018 Area F TAC of Chinook salmon. 605463 B.C. Ltd. paid the $4,000 transfer price to 7 Seas. In doing so, 605463 B.C. Ltd. anticipated adding 390 Chinook salmon to Winter Wind 's allowable catch bringing its TAC to 780 Chinook salmon for 2018. [ 9 ] On August 11, 2018, Munro and 605463 B.C.

Ltd. offloaded 261 Chinook salmon caught on the Winter Wind , which were sold to 7 Seas. [ 10 ] For reasons left unexplained at Trial and during sentencing submissions, the transfer of Chinalibut's 0.4149 percent share of the 2018 Area F TAC of Chinook salmon to the Winter Wind was not completed and, accordingly, on August 11, 2018, the Winter Wind only had room for an additional 44 Chinook salmon on its licence. Consequently, on August 11, 2018, the Winter Wind was 217 Chinook salmon over its quota limit, and therefore 217 were illegally fished for, possessed, and sold.

Sentencing Positions of the Parties [ 11 ] The PPSC seeks a punitive sentence for both defendants, emphasizing the principles of general and specific deterrence.

Specifically, the PPSC relies upon several case authorities, including the leading British Columbia decisions of R. v. Brown, 2010 BCCA225 and R. v. Schafhauser, 2017 BCSC 2287, and the recent Supreme Court of Canada decision in R. v. Vallieres, 2022 SCC 10. [12] In Brown, a case that involved the harmful alteration, disruption or destruction of fish habitat contrary to the Fisheries Act, ourCourt of Appeal confirmed that the leading case on the principles of sentencing for environmental offences is R. v. Terroco IndustriesLimited, 2005 ABCA 141.

In doing so, our Court of Appeal reinforced that sentencing principles for environmental offences require aunique approach, with specific emphasis on the areas of culpability, past involvement with the authorities, acceptance of responsibility,harm, and deterrence. [13] In Schafhauser, a

summary conviction appeal case involving a commercial salmon fisher in Haida Gwaii, Justice Punnettconfirmed that: [11] The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it mustbe taken seriously. Accordingly, the predominant sentencing consideration must be deterrence, both specifically of the accused andgenerally 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] NJ 264, NFLPC), R. v. Forsey, the latter at [1999] NJ. No. 264 (NLPC) at paragraph20). [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 CCC (3d) 293, a decision of the Alberta Court ofAppeal, pages 304 to 311; and R. v.

Brown, 2010 BCCA 225, at paragraph 13). [14] Counsel for the PPSC submits that the Court ought to impose the following penalties: i. Count 1: A $15,000 fine to each defendant. ii. Count 2: A $5,000 fine to each defendant. iii. Count 3: A $5,000 fine to each defendant. iv. Count 4: A $5,000 fine to each defendant. v. A 2023 commercial fishing licence suspension for 605463 BC Ltd. vi. A disgorgement penalty by way of a s. 79 Fisheries Act additional penalty of $21,081.38 to be split between the defendants($10,540.69 for each defendant). $21,081.38 is the amount of the monetary benefits received by the defendants.

The Fish Slips set outthe monetary profit made on August 11, 2018: a. The defendants were allowed to fish for, possess and sell 44 Chinook salmon on August 11, 2018. Nevertheless, 261 Chinooksalmon were caught, possessed and sold on August 11, 2018. Accordingly, 217 too many Chinook salmon were caught, possessed andsold on August 11, 2018. b. Expressed as a percentage, 217 is approximately 83 percent of 261. c. A total of $25,399.25 worth of Chinook salmon was caught, possessed, and sold on August 11, 2018. d.

Eighty-three percent of $25,399.25 is approximately $21,081.38. [15] Counsel for the defendants vehemently disagrees with the PPSC's sentencing position and points to several mitigating factors: i. 605463 B.C. Ltd. paid $4,000 to 7 Seas to transfer Chinalibut's TAC to 605463 B.C. Ltd. ii. 605463 B.C. Ltd. and Munro had successfully engaged Nick at 7 Seas for the previous five years in acquiring other fisher'sTACs. iii. The defendants had an honest, albeit mistaken, belief that 605463 B.C. Ltd. had acquired Chinalibut's TAC adding 390 Chinooksalmon to 605463 B.C. Ltd.'s 2018 allowable catch.

As such, these are not offences of dishonesty. The defendants did not set out to stealfish. They tried to follow the rules but did not use due diligence. Accordingly, the present case is properly characterized as more of a"record-keeping offence." iv. Chinalibut did not fish for, possess or sell the 390 Chinook salmon that the defendants mistakenly believed had been transferredto 605463 B.C. Ltd.'s 2018 TAC. v. 605463 B.C. Ltd. has no enforcement history. Although Bullock has an enforcement history, he was acquitted at Trial. The Courtshould not pierce the corporate veil to penalize Bullock indirectly. vi.

While Munro has an enforcement history, he has 25 years in the fishing industry and has done well, considering that he hasdyslexia, has suffered from thyroid cancer, and like many others involved in the commercial fishing industry, has suffered financiallyfrom the uncertainty that is endemic in Canada's commercial fishery.

vii. The defendants were not grossly negligent. viii. It is not in the public interest to require the defendants to pay a disgorgement penalty by way of a s. 79 Fisheries Act additional penalty. ix. Applying the "totality principle" to the facts of the present case should result in a significantly smaller fine than the amount sought by the PPSC. [ 16 ] In light of the mitigating factors present, the defendants seek a global fine of $5,500 for each defendant, broken down as $5,000 for counts 1, 3 and 4, plus $500 in total for count 2.

Discussion [ 17 ] Munro and Bullock are experienced commercial fishers. 6 05463 B.C. Ltd. was incorporated on April 14, 2000. Bullock became the sole director and shareholder of 6 05463 B.C. Ltd. on March 29, 2006. 6 05463 B.C. Ltd. has owned the Winter Wind since November 20, 2014. [ 18 ] Munro, who is from a family of commercial fishers, is 38 years of age. He has a grade 9 education and has difficulty reading. Munro believes himself to have a learning disorder such as dyslexia.

For the past two years, Munro has not been able to support himself financially and has had to rely upon his parents as he has been recovering from thyroid cancer. [ 19 ] It is important to remember that Bullock – who had been charged per s. 78.2 of the Fisheries Act in his capacity as an officer, director or agent of 605463 B.C. Ltd. -- was acquitted at Trial. Bullock is 50 years of age, and he has been a commercial fisher for at least 25 years . As such, I am not here to sentence Bullock; instead, I am here to sentence the company he is the sole director and shareholder of.

Furthermore, Bullock made a conscious decision to separate his personal affairs from his business affairs, as evidenced by the fact that 6 05463 B.C. Ltd. owns the Winter Wind and is the licence holder. [ 20 ] For at least five years before the offences in this matter, Munro, Bullock, and 6 05463 B.C. Ltd. had been utilizing the services of Nick at 7 Seas to facilitate the purchase and transfer of other company's TAC's to allow Munro, Bullock, and 6 05463 B.C. Ltd. to lawfully fish for, possess and sell fish in excess of their initial TACs .

Indeed, in the present case, the agreed sale price of $4,000 had been paid by 605463 B.C. Ltd. to 7 Seas for Chinalibut's 0.4149 percent share of the 2018 Area F TAC of Chinook salmon. Culpability [ 21 ] I believe 6 05463 B.C. Ltd. and Munro share fifty/fifty the responsibility for the wrongdoing or failure in the present case . [ 22 ] Concerning counts 1, 3 and 4, 6 05463 B.C.

Ltd. should have ensured -- before allowing Munro and the Winter Wind to leave port on August 11, 2018 -- that the DFO had assigned a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation from Chinalibut for 605463 B.C. Ltd. Likewise, Munro, as an experienced commercial fisher and skipper, should have refused to begin fishing before he had confirmation that the DFO had assigned a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation from Chinalibut for 605463 B.C. Ltd. [ 23 ] Concerning count 2, 6 05463 B.C.

Ltd. should have had a system to track the return of all paper harvest logs from the Winter Wind in 2018 to the catch reporting service provider by April 30, 2019. Likewise, as an experienced commercial fisher and skipper, Munro should have ensured the delivery of the paper harvest logs from his fishing trips in 2018 to the catch reporting service provider by April 30, 2019. Prior Record [ 24 ] Munro has a prior fishing record: June 26, 2015 – A warning for violating s. 26(1)(

a) of the Fishing (General) Regulations . August 11, 2017 – A warning for violating s. 26(1)(

a) of the Fishing (General) Regulations . August 18, 2017 -- A warning for violating s. 26(1)(

a) of the Fishing (General) Regulations . February 4, 2019 -- Two convictions for violating s. 22(7) of the Fishing (General) Regulations on July 10, 2018, when he had barbed hooks and a non-functioning revival tank onboard the vessel. [ 25 ] While Munro’s two convictions for violating s. 22(7) of the Fishing (General) Regulations relate to offences that predate the violations in the present case; the convictions were not entered until February 4, 2019. He was sentenced to a total of $2,500 in fines.

Furthermore, while I am allowed to take notice of the three warnings issued to Munro before August 11, 2018, I must temper my knowledge of the warnings with the reality that warnings are subjective allegations untested in Court or otherwise subjected to judicial oversight. [ 26 ] 6 05463 B.C. Ltd. does not have a prior fishing record. Bullock, on the other hand, has a prior fishing record dating back to 1997, including: Two convictions for violating s. 78 of the Fisheries Act , One conviction for violating s. 33 of the Fisheries Act , Eight convictions for violating s. 22(7) of the Fishing (General) Regulations ,

One conviction for violating s. 11 of the Fishing (General) Regulations , One conviction for violating s. 12 of the Fishing (General) Regulations , and Six warnings for violations of the Fishing (General) Regulations . [ 27 ] Julie Chen, in Modernizing Corporate Veil Piercing in Canada: Revisiting Yaiguaje v Chevron and its Transnational Governance Gap , provides a succinct description of what piercing the corporate veil means: In Canada, “piercing the corporate veil” refers to the common law judicial power whereby courts can set aside limited liability or separate legal personality, which can be for the purpose of making shareholders liable for a corporation’s debts.

Early Canadian decisions applying the principle of corporate veil piercing drew on English court cases. T he doctrine can be applied in both contracts and torts cases. An empirical study of the doctrine in Canada demonstrated that the manner in which courts apply veil piercing is highly contextual and differs based on case-specific factors. Generally recognized grounds for corporate veil piercing have included concepts such as agency or use of the corporate structure for improper purposes.

In explaining their reasons, Canadian courts, including the Supreme Court, have also relied on preventing manifest unfairness, general interests of justice, and the role of equitable remedies as the “conscience” of law. The exact formulation of the doctrine remains debated.

Julia Chen, Modernizing Corporate Veil Piercing in Canada: Revisiting Yaiguaje v Chevron and its Transnational Governance Gap , 2021 18-1 McGill Journal of Sustainable Development Law 63, 2021 CanLIIDocs 13217 . [ 28 ] Based upon the facts of the present case, including that Bullock was charged and acquitted in his capacity as an officer, director or agent of 605463 B.C. Ltd., I am not prepared to pierce the corporate veil concerning Bullock and 605463 B.C. Ltd. Accordingly, I am sentencing 6 05463 B.C. Ltd. as an entity with no prior enforcement record.

Acceptance of Responsibility and Remorse [ 29 ] Regarding counts 1, 3 and 4, 6 05463 B.C. Ltd. and Munro accept that they errored in failing to confirm that Chinalibut's TAC had been secured and the transfer approved by DFO before the Winter Wind set out from port on August 11, 2018. At trial, the defendants pursued a technical and legalese defence, attacking legislative drafting that leaves room for improvement. I do not doubt that 6 05463 B.C.

Ltd. and Munro genuinely wish they had not been negligent and, in the future, will ensure that the details of any anticipated TAC transfer are complete before the Winter Wind leaves port. They accept that what they did was wrong. Likewise, concerning count 2, 6 05463 B.C. Ltd. and Munro accept that their failure to submit the paper harvest logbooks is unacceptable. [ 30 ] However, the defendants’ negligence in failing to confirm the completion of the transfer of Chinabut’s TAC and failing to submit the paper harvest logbook on time is not a mere administrative or accounting detail.

The requirements were conditions of the fishing licence. The failure to comply with the condition of licence and acquire the additional allowable TAC means that the 217 Chinook salmon fished for, possessed and sold were illegally fished for, possessed and sold. The failure to submit the paper harvest logbook was a flagrant breach of a fundamental licence condition. The data provided by the harvest logbooks is crucial to the ability of DFO to manage the fisheries for the benefit of all Canadians properly. The defendants knew what needed to be done.

They did not do what needed to be done through either carelessness or laziness. It was no oversight or forgetfulness. Accordingly, with respect, these are not merely record- keeping offences. Harm Done [ 31 ] There is a saying in basketball, “no harm, no foul.” Defence counsel submits that the same principle should apply in the present case. Counsel seeks to discount the harm done by urging the Court to accept that there has been no foul in the present case. Counsel submits that the convictions in the present case are for what can be described as record-keeping offences.

While it is true that concerning counts 1, 3 and 4, Chinabut – the firm that was supposed to transfer its TAC -- did not fish for, possess or sell the excess 217 Chinook salmon; nonetheless, the integrity of the commercial fishing industry did take a hit. As regards count 2, I cannot overemphasize that accurate catch records are a crucial indicator of the health of the commercial Chinook salmon fishery.

The failure to provide a harvest logbook to DFO as required by a condition of licence has the possibility of affecting the setting of quota allocations to support sustainability. [ 32 ] The DFO impact statement provided to the Court in R. v. Henneberry , 2019 NSSC 119 , in paragraph 28 , provides an excellent

summary of the harm done in cases such as the present: Illegal retention of fish, misreporting, and failure to report catch have major consequences for the sustainability of fish stocks, the integrity of the management and monitoring systems, and the economics of the fishery. Ultimately, honest licence holders suffer negative financial consequences through lower quotas, more conservative by-catch limits, and higher costs of doing business. All Canadians pay higher management, enforcement, and legal costs for the damage done to a common property resource and to the marine ecosystem.

It is also important to note that when licence holders have been successful at circumventing the rules and there are little consequences to their actions, other licence holders observe the outcomes. If illegal fishing practices go unchecked, the potential for other licence holders to advance in this direction increases, placing the stock and ecosystem at a higher risk. Additionally, misreporting impacts the processes used to establish catch limits and the management regime which ensures those limits are respected.

Deterrence [ 33 ] It has long been accepted that the paramount principle of sentencing in commercial fishing cases is specific and general deterrence. [ 34 ] The fines to be levied, combined with what has been a time-consuming and, no doubt, costly process for the defendants to engage

in, will act to deter them specifically. [ 35 ] Nevertheless, general deterrence needs to be addressed. In considering general deterrence, I adopt the words of Judge Mrozinski as set out in the second half of paragraph 44 in R. v. McKinnell Fishing Ltd ., 2016 BCPC 466 : …There may have been a time in the distant past when a mind of a practical bent might have wondered about the futility of the finer points of fisheries laws. In the present day, there is no room for such complacency.

In a world in which resource sustainability is strained, not just by demand but by the environment itself, the value of regulatory compliance cannot be overstated. And at paragraph 46, Seen in this light, while the defendant's transgressions may, to it, have seemed innocuous, they clearly are not. The failure to comply with its licence and regulations has the potential to contribute to a failure of this fishery, particularly if all fishers were of the same view.

It is for this reason, clearly, that virtually all of the case law before me in this sentencing emphasizes the importance of the sentencing objectives of specific and general deterrence in regard to these regulatory offences. [ 36 ] The sentence I impose must deter others engaged in the commercial fishing industry who fail to account for the minutiae of licensing conditions. The sentence must recognize that tedious paperwork cannot be forgotten or dismissed.

Deadlines must be met, and DFO approval must be sought and gained when required by one’s licence conditions. [ 37 ] When viewed in the context of the defendants in the present case, the sentence I am imposing will act as a deterrent to other commercial fishers. Conclusion [ 38 ] In fashioning a sentence specific to 6 05463 B.C. Ltd. and Munro, I have considered the Supreme Court of Canada's teachings in R. v. Lacasse , 2015 SCC 64 , and the case law provided by counsel. I have also considered the moral blameworthiness of 6 05463 B.C. Ltd. and Munro , which I find to be the middle of the scale for both defendants.

I accept that 6 05463 B.C. Ltd. and Munro did not set out to break the law. On the other hand: i. 6 05463 B.C. Ltd. did not undertake the actions required of a responsible commercial fishing vessel owner/operator to ensure that the DFO had assigned a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation from Chinalibut for 605463 B.C. Ltd. before August 11, 2018; ii. 6 05463 B.C.

Ltd. did not undertake the actions required of a responsible commercial fishing vessel owner/operator to ensure that the paper harvest logs from the July 22, 2018, and August 11, 2018, fishing trips were submitted as required to the catch reporting service provider by April 30, 2019; iii. Munro did not undertake the actions required of a responsible commercial fishing vessel skipper to ensure that the DFO had assigned a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation from Chinalibut for 605463 B.C. Ltd.; and iv.

Munro did not undertake the actions required of a responsible commercial fishing vessel skipper to ensure that the paper harvest logs from his fishing trips on July 22 and August 11, 2018, were submitted as required to the catch reporting service provider by April 30, 2019. [ 39 ] In Lacasse , the Supreme Court of Canada instructed that the overarching principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, the latter of which means the offender's moral blameworthiness.

The principle of parity, which requires a consideration of sentences imposed on similar offenders in similar circumstances, informs the proportionality analysis, ensuring that the sentence is both individually proportionate and proportionate with sentences given to other offenders in similar situations. [ 40 ] That said, we are cautioned at paragraph 54 in Lacasse : [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account.

Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences . . . is secondary to the fundamental principle of proportionality.

This Court explained this as follows in C.A.M. : It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . .Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [ 41 ] In paragraph 58 of Lacasse , concerning the applicability of sentencing ranges, the Court explained: [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. . .

[ 42 ] Based upon the lack of financial information provided by counsel about the defendants, I cannot say if the fines requested by either counsel are appropriate for these two defendants. [ 43 ] Unlike in a Family Court matter, where parties are routinely required to file a Financial Statement that sets out their savings plus income and expenses for at least three, if not more, years, I do not know in the present case if the defendants are destitute or flush with cash. [ 44 ] Defence counsel has told the Court that Munro has been battling thyroid cancer and had to rely upon his parents financially over the past two years, but does this mean that Munro is broke or has no prospects in 2023 and forward to earn a significant income?

And I do not know the financial situation of 6 05463 B.C. Ltd. The company could be worth millions. Bullock may have received tens or hundreds of thousands from 6 05463 B.C. Ltd. in dividends or cash withdrawals over the past five years. I do not know. [ 45 ] I am cognizant that $40,540.69 in fines and penalties for a person who makes $200,000 a year in income is not the same as $40,540.69 in fines and penalties for a person earning British Columbia's minimum wage of $15.65 per hour.

Likewise, I am aware that $40,540.69 in fines is not the same for a company with a significant net worth and assets, as it is for an unemployed person dealing with health issues or a small family-owned and operated company with little or no cash value. [ 46 ] Section 734(2) of the Criminal Code , which applies to all Acts of Parliament, including the Fisheries Act , makes it clear that when determining the appropriate fine amounts to be handed out in the present case, I cannot blindly pick dollar figures out of the air. I must consider the defendants’ ability to pay the fine.

Section 734(2) reads, Offender’s ability to pay

(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may 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

section 736. [ 47 ] Without a better understanding of each defendant's current financial position, it is difficult for the Court to craft fines that act as both specific deterrence for the defendants and general deterrence for other commercial fishers and companies involved in the commercial fishing industry.

Given what counsel submitted on behalf of the defendants regarding their current financial situation, I am not satisfied that the defendants can pay the fine amounts requested by the PPSC, even if I give the defendants many years to pay the files. [ 48 ] In considering the PPSC's request for a s. 79 Fisheries Act additional penalty, I agree that an additional penalty is appropriate in this case.

W h ile the defendants did not set out to break the law, their negligence and lack of due diligence allowed them to financially benefit from the Chinook salmon that were caught, possessed and sold to 7 Seas on August 11, 2018. Based on the Fish Slips, the monetary benefit received by the defendants is $21,081.38. As I previously determined, the responsibility for the wrongdoing or failure in the present case is shared fifty/fifty between 605463 B.C. Ltd. and Munro. Likewise, a review of the Fish Slips indicates that 605463 B.C.

Ltd. and Munro were to essentially share the profit from selling the Chinook salmon equally. Accordingly, the s. 79 Fisheries Act additional penalty will be split evenly between the defendants ($10,540.69 for 605463 B.C. Ltd. and $10,540.69 for Munro).

If the defendants believe that one of them should be paying more than a 50% share of the disgorgement penalty, they can work that out between themselves. [ 49 ] Given: 1. my earlier determination that the combination of the fines I impose today with the costs and time spent by the defendants in participating in the Court process will specifically deter the defendants, and 2. my decision not to pierce the corporate veil, I decline the PPSC’s request to suspend first-time offender 605463 B.C. Ltd.’s commercial fishing licence for 2023. Sentences Imposed [ 50 ] In respect of 605463 B.C.

Ltd., the sentence imposed is as follows: Count 1: $2,500. The time to pay will be December 31, 2026. Count 2: $5,000. The time to pay will be December 31, 2026. Count 3: $1,000. The time to pay will be December 31, 2026. Count 4: $1,000. The time to pay will be December 31,

Section 79 Fisheries Act additional penalty of $ 10,540.69. The time to pay will be December 31, 2028. [ 51 ] In respect of Munro, the sentence imposed is as follows Count 1: $2,500. The time to pay will be December 31, 2026. Count 2: $5,000. The time to pay will be December 31, 2026. Count 3: $1,000. The time to pay will be December 31, 2026. Count 4: $1,000. The time to pay will be December 31,

Section 79 Fisheries Act additional penalty of $ 10,540.69. The time to pay will be December 31, 2028. [ 52 ] All of which is ordered this 6 th day of January, 2023.