R. v. Munro, 2023 BCPC 5

Citation: R. v. Munro 2023 BCPC 5 Date: 20230106 File No: 6931-1 Registry: Masset IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ADAM MUNRO and SILAS LEVESQUE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: 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 September 28, 2022, after a multiday trial, I found that the Public Prosecution Service of Canada ("PPSC") had proven beyond a reasonable doubt that Adam Munro committed the offences alleged in counts 1 and 3 of Court Information 6931-1, and that Silas Levesque committed the offences alleged in counts 1, 3 and 4 of Court Information 6931-1: Count 1 Adam Munro, Silas Levesque, and ATM Fishing Ltd., between July 22, 2018, and August 9, 2018, 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 the 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

Section 78(

a) of the Fisheries Act. Count 3 Adam Munro, Silas Levesque, and ATM Fishing Ltd., between July 22, 2018, and August 15, 2018, at or near the Village of Masset, in the Province of British Columbia, and elsewhere in the Province of British Columbia, did possess fish caught in contravention of the Fisheries Act or its regulations contrary to

Section 33 of the Fisheries Act , and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act . Count 4 Silas Levesque, between July 28, 2018, and November 5, 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 vessel master shall submit fish slips as required by licence not later than seven (7) days after landing, contrary to Section 22(7) of the Fishery (General) Regulations, and did thereby commit an offence contrary to

Section 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 203 . [ 3 ] In brief, throughout 2018, Munro was the owner of the Wind Walker I, a vessel licenced to participate in British Columbia’s Salmon Area F Salmon Troll Fishery. Levesque was the skipper, also known as the vessel master, of the Wind Walker I.

Both Munro and Levesque possessed valid fish harvester registration cards (“FRC”). [ 4 ] In 2018, the Wind Walker I had a salmon/troll licence with conditions of licence attached, allowing the Wind Walker I 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 ] The Wind Walker I had a valid salmon troll licence for the 2018 commercial fishing season, Salmon Troll Licence 2018 AT 3150 2018, issued on June 21, 2018, with an expiry date of March 31, 2019. [ 6 ] In 2018, there were 241 Chinook salmon troll licences for the Salmon Area F Salmon Troll Fishery. The total 2018 Area F TAC of Chinook salmon allocated to the commercial troll fishery was 93,900, meaning each of the commercial fishing troll licence holders were entitled to one of 241 shares, expressed in terms of a percentage.

Thus, a maximum of 0.4149 percent of the total TAC. In 2018, 0.4149 percent equalled 390 Chinook salmon. [ 7 ] The Conditions of 2018/2019 Salmon Area F Licence, amended June 20, 2018, issued on June 21, 2018 (“Conditions of Licence”), set out the Wind Walker I’s TAC. 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.

Section 1. Species and quantities of fish permitted to be taken of the Conditions of Licence specifically allowed for such a practice. Munro and his company ATM Fishing Ltd. regularly participated in the practice. [ 8 ] Fisheries and Oceans Canada (“ DFO”) is not involved in 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 and, upon approval, the DFO assigns a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation. [ 9 ] In the Wind Walker I’s case, the Conditions of Licence allowed the Wind Walker I to acquire a maximum total uncaught quota equal to three individual transferable quotas, which equates to 1.245 percent of the 2018 Area F TAC. In other words, 1,170 Chinook salmon.

There was no evidence before the court that the Wind Walker I acquired a part or all of another fishing licence holder’s 2018 Area F TAC of Chinook salmon. Accordingly, the Wind Walker I’s Conditions of Licence only allowed for the catch and retention of 390 Chinook salmon in 2018. [ 10 ] On July 22, 2018, 357 Chinook salmon caught in the commercial Salmon Area F Salmon Troll Fishery were offloaded from the Wind Walker I in Prince Rupert, British Columbia.

As the Wind Walker I had a Chinook Current Vessel Remaining Chinook Quota (“VRQ”) of 390 Chinook salmon on July 22, 2018, the offloading of the 357 Chinook salmon left it with an Updated VRQ of 33 Chinook salmon. [ 11 ] On August 8, 2018, 327 Chinook salmon caught in the commercial Salmon Area F Salmon Troll Fishery were offloaded from the Wind Walker I in Prince Rupert, British Columbia. As the Wind Walker I had a VRQ available of 33 Chinook salmon, the result was

that it had offloaded 294 more Chinook salmon than allowed by its VRQ. [12] During the course of the cross-examination of both Lenda Girard and Peter Katinic, defence counsel suggested to the witnessesthat they knew or were told that Nick at 7 Seas often arranged for the sale or transfer of TACs from one licence holder to another. Theline of questioning suggested that Nick at 7 Seas had dropped the ball and failed the defendants by not preparing and completing a validtransfer of another licence holder’s TAC to the Wind Walker I prior to August 8, 2018.

All the same, regardless of who was responsible,the fact remained that the Wind Walker I did not receive all or part of another licence holder’s TAC. [13] Accordingly, on August 8, 2018, the maximum number of Chinook salmon that the Wind Walker I was allowed to fish for, sellor possess, was 33. Consequently, the Wind Walker I was 294 Chinook salmon over its quota limit, and therefore 294 Chinook salmonwere illegally fished for, possessed, and sold. [14] Fish Slips are created to record the value of fish sold by commercial fishers working in British Columbia.

The DFO’s FisheriesManagement Data Unit (“FMDU”) stores and maintains all Fish Slips records related to the landing of commercial fishing harvest inBritish Columbia. Fish Slips become a record of the landing of a fishing trip, and include information such as the vessel master’s name,vessel name, plant name, fishing date, lending date, area fished, trip length, type of gear used, species, weight, price, form, and value.FMDU uses the information in Fish Slips to create catch statistics.

The Conditions of Licence required Fish Slips to be filled out andremitted by the vessel master to the FMDU not later than seven days after landing. [15] Levesque, as the skipper of the Wind Walker I on July 22 and August 8, 2018, failed to remit the Fish Slips to the FMDU notlater than seven days after landing Sentencing Positions of the Parties [16] 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. [17] 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. [18] 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) 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 CCC (3d) 293, a decision of the Alberta Court ofAppeal, pages 304 to 311; and R. v.

Brown, 2010 BCCA 225, at paragraph 13). [19] 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 3: A $5,000 fine to each defendant. iii. Count 4: A $3,000 fine to Levesque. iv. A commercial fishing licence suspension for each defendant. vi. A disgorgement penalty by way of a s. 79 Fisheries Act additional fine of $43,075.50, representing the gross value of theChinook salmon from the August 8, 2015, trip, to be split between the defendants ($21,537.75 for each defendant).

The PPSC views$43,075.50 as the amount of the monetary benefits received by the defendants as set out in the July 22 and August 8, 2015, Fish Slips. [20] Counsel for the defendants vehemently disagrees with the PPSC's sentencing position and points to several mitigating factors: i. In relation to counts 1 and 3, this is not a case where Munro and Levesque went out and simply over-fished, as a great number ofcases in the PPSC’s book of authorities are. This is a case in which Munro and Levesque went out and did what they thought wassupposed to be done. They tried to follow the rules but did not use due diligence.

Unfortunately, something broke down and theadditional TAC quota was not transferred. Accordingly, the present case is properly characterized as more of a “record-keeping offence.”As such, the defendants do not deserve something akin to a fine that would be given to a thief, depriving the thief of his loot, so to speak.The defendants are not thieves. They didn’t take what was not theirs. They made efforts to secure the additional TAC quota. A third

party – Nick at 7 Seas – failed to process the transaction. The defendants only error is that they failed to confirm, before fishing, that the additional TAC quota transfer had completed. ii. Since the defendants had an honest, albeit mistaken, belief that the Wind Walker I had acquired an additional TAC adding 390 Chinook salmon to the Wind Walker I ’s 2018 TAC, this is not an offence where fish were intentionally caught and then cover-ups happened after that. Nor is this a case where Chinook salmon were just intentionally caught over the quota. This was a case where the fishermen tried to do the right thing.

They tried to play by the rules, and the result was not actual harm to the resource as no other party fished for, possessed or sold the 390 Chinook salmon that the defendants mistakenly believed had been transferred to the Wind Walker I. iii. In relation to count 4, as a first time skipper, it was a simple oversight on Levesque’s part and there was no malfeasance meant. In other words, it was a case of misfeasance, being an error by negligence or inadvertence. iv.

When one looks at the bigger picture, the facts in context, the defendants do not have long, significant records showing a pattern of ungovernability. v. While Munro has an enforcement history, he has 25 years in the fishing industry and has done well, considering that he has dyslexia, has suffered from thyroid cancer, and like many others involved in the commercial fishing industry, has suffered financially from the uncertainty that is endemic in Canada's commercial fishery. He is living with his parents and does not have significant financial assets to his name. vi. 2018 was Levesque’s first year as a skipper.

He was just starting out. He is only 30 years old. There is no pattern of misbehaviour. He was learning on the job and there have been no serious incidents since. Certainly, he has learned his lesson from the summer of 2018. He’s paid quite a price for it. 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 small fine than the amount sought by the PPSC. [ 21 ] In light of the mitigating factors present, the defendants seek a global fine of $3,000 for each defendant. Discussion [ 22 ] Munro is an experienced commercial fisher and skipper. He is from a family of commercial fishers and 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. [ 23 ] For at least five years before the offences in this matter, Munro 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 to lawfully fish for, possess and sell fish in excess of his initial TACs .

Culpability [ 24 ] I believe Munro and Levesque share fifty/fifty the responsibility for the wrongdoing or failure in the present case . [ 25 ] Concerning counts 1 and 3, Munro and Levesque should have ensured -- before allowing the Wind Walker I to leave port on August 8, 2018 -- that the DFO had assigned a Chinook Quota Reallocation Confirmation Number certifying completion of the Chinook quota reallocation from Chinalibut.

Likewise, Munro, as an experienced commercial fisher and skipper, should have ensured that Levesque was aware that he could not 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. [ 26 ] Concerning count 4, Munro, as an experienced commercial fisher and skipper, should have ensured that rookie skipper Levesque was aware that he needed to submit the Fish Slips as required by licence not later than seven (7) days after landing.

That said, the ultimate responsibility lies with Levesque, who was the skipper on July 22 and August 8, 2018. [ 27 ] Munro and Levesque should have had a system to track the completion of all tasks required by the Conditions of Licence. Prior Record [ 28 ] 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. [ 29 ] 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 8, 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. [ 30 ] Levesque has a prior fishing record, including two convictions for violating s. 22(7) of the Fishing (General) Regulations on August 4, 2017, which were disposed of in court on November 19, 2018. He received a total of $2,500 in fines.

He also has one conviction for violating s. 25(1) of the Fisheries Act on October 18, 2018, which was disposed of in court on February 18, 2021, for which he received a $20,000 fine. I note that in relation to the s. 25(1) Fisheries Act conviction, Leveque was also ordered to pay an additional $25,000 penalty under s. 79.2(

f) of the Fisheries Act , for the purpose of promoting the proper management and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat. Acceptance of Responsibility and Remorse [ 31 ] Regarding counts 1 and 3, Munro and Levesque accept that they errored in failing to confirm that Chinalibut's TAC had been secured and the transfer approved by DFO before the Wind Walker I set out from port on August 8, 2018.

At trial, the defendants pursued two technical and legalese defences, attacking legislative drafting that leaves room for improvement and raising an interesting and academically thought-provoking argument that s. 22(7) of the Fishery (General) Regulations is ultra vires and accordingly Munro and Levesque were entitled to acquittals on all counts. I do not doubt that Munro and Levesque genuinely wish they had not been negligent and, in the future, will ensure that the details of any anticipated TAC transfer are complete before taking to the water to fish. They accept that what they did was wrong.

Likewise, concerning count 4, Levesque accepts that his failure to submit the Fish Slips is unacceptable. [ 32 ] However, the defendants’ negligence in failing to confirm the completion of the transfer of Chinabut’s TAC and Levesque’s failure to submit the Fish Slips within seven days, are not mere administrative or accounting detail.

The requirements were conditions of the fishing licence. [ 33 ] The failure to comply with the condition of licence and acquire the additional allowable TAC means that the 294 Chinook salmon fished for, possessed and sold on August 8, 2018, were illegally fished for, possessed and sold. [ 34 ] The failure to submit the Fish Slips was a flagrant breach of a fundamental licence condition. The data provided by the Fish Slips is crucial to the ability of DFO to manage the fisheries for the benefit of all Canadians properly. [ 35 ] 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. They are required by law to know their responsibilities and complete their responsibilities. Accordingly, with respect, these are not merely record-keeping offences. Harm Done [ 36 ] 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 and 3, Chinabut – the firm that was suppose to transfer its TAC -- did not fish for, possess or sell the excess 294 Chinook salmon; nonetheless, the integrity of the commercial fishing industry did take a hit. As regards count 4, I cannot overemphasize that accurate catch records, including Fish Slips, are a crucial indicator of the health of the commercial Chinook salmon fishery.

The failure to provide the Fish Slips to DFO as required by a condition of licence has the possibility of affecting the setting of quota allocations to support sustainability. Fish Slips are created to record the value of fish sold by commercial fishers working in British Columbia. The FMDU stores and maintains all Fish Slips records related to the landing of commercial fishing harvest in British Columbia.

Fish Slips become a record of the landing of a fishing trip, and include information such as the vessel master’s name, vessel name, plant name, fishing date, lending date, area fished, trip length, type of gear used, species, weight, price, form, and value. FMDU uses the information in Fish Slips to create catch statistics. [ 37 ] 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 [ 38 ] It has long been accepted that the paramount principle of sentencing in commercial fishing cases is specific and general deterrence. [ 39 ] 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. [ 40 ] 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, 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. [ 41 ] 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. [ 42 ] 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 [ 43 ] In fashioning a sentence specific to Munro and Levesque, 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 Munro and Levesque , which I find to be the middle of the scale for both defendants. I accept that Munro and Levesque did not set out to break the law. On the other hand: i. Munro 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 the Wind Walker I before August 8, 2018; ii.

Levesque 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; and iii.

Levesque did not undertake the actions of a responsible skipper to ensure that the Fish Slips from the July 22, 2018, and August 8, 2018, fishing trips were submitted as required to the catch reporting service provider. [ 44 ] 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. [ 45 ] 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. [ 46 ] 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. . . [ 47 ] 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. [ 48 ] 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. [ 49 ] 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 Levesque . Although Levesque is early in his fishing career, he might be financially secure.

I do not know. [ 50 ] I am cognizant that $44,537.75 in fines for a person who makes $200,000 a year in income is not the same as $44,537.75 in fines for a person earning British Columbia's minimum wage of $15.65 per hour. [ 51 ] 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. [ 52 ] 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. [ 53 ] 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 8, 2018. Based on the Fish Slips, the monetary benefit received by the defendants is $43,075.50 . As I previously determined, the responsibility for the wrongdoing or failure in the present case is shared fifty/fifty between Munro and Levesque. Accordingly, the s. 79 Fisheries Act additional penalty will be split evenly between the defendants: $21,537.75 to Munro and $21,537.75 to Levesque.

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. [ 54 ] 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. the disgorgement penalty; I decline the PPSC’s request to suspend the commercial fishing licences of either Munro or Levesque -- both of whom I am treating as first time offenders for purposes of this sentencing -- for all or part of 2023.

Sentences Imposed [ 55 ] In respect of Munro , the sentence imposed is as follows: Count 1: $2,500. The time to pay will be December 31, 2026. Count 3: $1,000. The time to pay will be December 31,

Section 79 Fisheries Act additional penalty of $21,537.75. The time to pay will be December 31, 2028. [ 56 ] In respect of Levesque, the sentence imposed is as follows: Count 1: $2,500. The time to pay will be December 31, 2026. Count 3: $1,000. The time to pay will be December 31, 2026. Count 4: $5,000. The time to pay will be December 31,

Section 79 Fisheries Act additional fine of $21,537.75. The time to pay will be December 31, 2028. [ 57 ] All of which is ordered this 6 th day of January, 2023.