R. v. Whiteside, 2021 BCPC 295

Citation: R. v. Whiteside 2021 BCPC 295 Date: 20211207 File No: 6932-1 Registry: Queen Charlotte IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHAD JAMES WHITESIDE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: A. Switzer Counsel for the Defendant: A. Turton, Q.C. Place of Hearing: Masset, B.C. and Prince Rupert , B.C.

Date of Hearing: August 10, 2021, August 11, 2021 and November 16, 2021 Date of Judgment: December 7, 2021 [ 1 ] I am able to, and do, take judicial notice of certain facts concerning the Indigenous peoples of Canada, the group of islands known as Haida Gwaii, the Haida people, and the on-going COVID-19 pandemic. I rely upon R. v. Spence , 2005 SCC 71 , as authority for doing so. The facts that I am taking judicial notice of are generally accepted. The facts I rely upon are not the subject of debate among reasonable persons.

Furthermore, they are facts that are capable of immediate and accurate demonstration by resort to readily

accessible sources of indisputable accuracy. [ 2 ] The name Haida Gwaii ( X̱aaydag̱a Gwaay.yaay / X̱aayda gwaay ) means “Islands of the People” in the Haida language. Sometimes referred to as “the Galápagos of the North”, Haida Gwaii is an isolated archipelago of over 150 islands located in the Pacific Ocean approximately 55 to 130 kilometres west of the northwest mainland coast of British Columbia. The two major islands in the archipelago are Graham Island ( Kiis Gwaay ) and Moresby Island ( T'aawxii X̱aaydaɢ̱a Gwaay.yaay linaɢ̱waay ) . [ 3 ] The Haida people have occupied Haida Gwaii for thousands of years.

The Haida traditional territory encompasses parts of southern Alaska, the archipelago of Haida Gwaii and its surrounding waters. [ 4 ] Haida people belong to either the Raven clan or the Eagle clan. Haida clan membership is matrilineal. Each clan divides further into a number of families.

Each family has certain rights that are carefully guarded, such as the right to use certain personal, house, and canoe names and the right to wear certain objects, or representations of objects, and to carve them on their houses (i.e. as family crests). [ 5 ] The pre-contact population of the Haida peoples was in excess of ten thousand, perhaps 30,000 or more.

Historically, the Haida people made their homes in their traditional territories all over Haida Gwaii, moving back and forth from fishing and resource gathering camps in the summer to larger villages in the winter for feasting and ceremonies. [ 6 ] In the late 1830s, smallpox came to Haida Gwaii. All the villages were devastated. By the late 19th century, smallpox, measles, typhoid, and other introduced diseases had decimated the Haida population. The Haida were reduced to as few as 500 people. [ 7 ] In 2021, Haida people make up approximately 50% of the 5,000 inhabitants of Haida Gwaii.

While Haida people reside throughout Haida Gwaii, they are concentrated in two main centres: Old Massett ( Gaw ) at the north end of Graham Island and Skidegate ( Hlgaagilda ) at the south end. [ 8 ] The Council of the Haida Nation, along with the Old Massett Village Council and the Skidegate Band Council, safeguard the lands, waters, and people of its community.

Municipal governments in Haida Gwaii have recognized the need to work with the Council of the Haida Nation, the Old Massett Village Council, and the Skidegate Band Council, by signing and abiding by the Island Protocol Agreement that recognizes Haida leadership and governance. [ 9 ] Some of the archipelago such as the Gwaii Haanas National Park Reserve, the National Marine Conservation Area Reserve, and the Haida Heritage Site , which includes the southernmost part of Moresby Island and several adjoining islands, is protected under federal legislation.

Some of the archipelago is also protected by provincial jurisdiction, including several provincial parks. [ 10 ] Haida Gwaii is home to an abundance of wildlife.

Many of the animals are endemic (unique) and are found nowhere else in the world, including unique sub-species of black bear, pine marten, river otter, Haida ermine, dusky shrew, silver-haired bat, California myotis, Keen’s myotis, little brown bat, and deer mouse. [ 11 ] Seabird populations include sub-species of saw-whet owl, hairy woodpecker, Steller’s jay, Peale’s peregrine falcon, and the ancient murrelet, a species-at-risk and for which Haida Gwaii is the only nesting location in Canada. [ 12 ] The waters of Haida Gwaii are world renown for their abundance of marine animals and sea life, including various species of whales, dolphins, porpoises, seals, and the largest colony of Steller’s sea lions in British Columbia.

Chinook and coho salmon, rockfish, cod, halibut, and various species of crab feed the abundant wildlife and provide a strong foundation for both a commercial and sport fishery . [ 13 ] The federal government has given Fisheries and Oceans Canada (“DFO”) the responsibility for safeguarding Haida Gwaii’s waters. The DFO is tasked with ensuring Haida Gwaii’s aquatic ecosystems remain healthy and sustainable, through habitat protection, sound science, and law enforcement. [ 14 ] Sandspit ( K'il Kun ), located on the northeastern tip of Moresby Island, is the largest community on Moresby Island and its only town.

With a population of approximately 500 people, Sandspit has accommodations, a campground, a supermarket, an 85-berth harbour, the Sandspit Airport, and a small ferry terminal that connects Moresby Island to Graham Island . THE CHARGES AND GUILTY PLEAS [ 15 ] On January 10, 2020, a Fishery Officer swore Queen Charlotte Court Information 6932-1 before a Justice of the Peace.

The Public Prosecution Service of Canada (the “PPSC”) had approved a total of 12 counts in Information 6932-1: five counts against each of 1369277 Alberta Ltd., Sandspit Adventures, and Chad James Whiteside, plus an additional seven counts against 1369277 Alberta Ltd. and Mr. Whiteside. [ 16 ] On August 10, 2021, in Masset Court, as part of a plea agreement with the PPSC, Mr. Whiteside indicated his desire to enter guilty pleas in front of me to Counts 5, 6, 7, 9, and 10 of Information 6932-1. All other counts against Mr.

Whiteside, and all counts against 1369277 Alberta Ltd. and Sandspit Adventures, were to be stayed by the PPSC at the conclusion of Mr. Whiteside’s sentencing. After a s. 606(1.1) Criminal Code plea inquiry, including my being satisfied that there was a factual basis to support the five proposed guilty pleas, I allowed Mr. Whiteside to enter his guilty pleas to Counts 5, 6, 7, 9, and 10 of Information 6932-1. [ 17 ] The five counts that Mr.

Whiteside pled guilty to are as follows: Count 5 Chad James Whiteside, between May 15, 2019, and July 13, 2019, at or near Sandspit, in the Province of British Columbia, did buy, sell, trade barter or offer to buy, sell trade or barter fish, that was not caught and retained under the authority of a licence issued for the purpose of commercial fishing, a licence issued under

Part VIl, a licence issued under the Aboriginal Communal Fishing Licences

Regulations, or an Excess Salmon to Spawning Requirement Licence issued under the Pacific Fishery Regulations, 1993, contrary toSection 35(2) of the Fishery (General) Regulations, and did thereby commit an offence pursuant to

Section 78(

a) pf the Fisheries Act. Count 6 Chad James Whiteside, between May 15, 2019, and July 13, 2019, at or near Sandspit, in the Province of British Columbia, did fail toensure that each container of sport caught fish was marked with the species of fish in the container, as required by 54(2)(

a) of the Fishand Seafood Licencing Regulations, contrary to

Section 14(

b) of the Fish and Seafood Act, and did thereby commit an offence pursuantto Section 54(1)(

e) of the Fish and Seafood Act. Count 7 Chad James Whiteside, between May 15, 2019, and July 13, 2019, at or near Sandspit, in the Province of British Columbia, did fail toensure that each container or sport caught fish was marked with the date on which the fish were processed, as required by 54(2)(

c) of theFish and Seafood Licencing Regulations, contrary to

Section 14(

b) of the Fish and Seafood Act, and did thereby commit an offencepursuant to Section 54(1)(

e) of the Fish and Seafood Act. Count 9 Chad James Whiteside, between May 15, 2019, and July 13, 2019, at or near Sandspit, in the Province of British Columbia, did fail toensure that a carton of containers of sport caught fish was marked with the name of the fisher who harvested the fish as required by 54(3)(

b) of the Fish and Seafood Licencing Regulations, contrary to

Section 14(

b) of the Fish and Seafood Act, and did thereby commit anoffence pursuant to Section 54(1)(

e) of the Fish and Seafood Act. Count 10 Chad James Whiteside, between May 15, 2019, and July 13, 2019, at or near Sandspit, in the Province of British Columbia, did fail toensure that processed sport caught fish are distributed only to the fisher who harvested the fish, as required by 55(1) of the Fish andSeafood Licencing Regulations, contrary to

Section 14(

b) of the Fish and Seafood Act, and did thereby commit an offence pursuant toSection 54(1) of the Fish and Seafood Act. SENTENCING POSITIONS OF THE PARTIES [18] The sentencing did not include a joint submission by counsel. Three court days were required for the contested sentencing, whichincluded Mr. Whiteside taking the witness stand and giving evidence. [19] Although Mr. Whiteside has no previous history of infractions, Ms. Switzer, on behalf of the PPSC, sought fines totalling$75,000 plus a further $40,000 payment for the purposes of promoting the proper conservation, management, and control of fisheriesand fish habitat in the Haida Gwaii area, pursuant to s. 79.2(

f) of the Fisheries Act. [20] Ms. Turton, on behalf of Mr. Whiteside, urged the court to recognize that specific deterrence has been met in Mr. Whiteside’scase and that fines totalling $42,500, without the requirement for an additional s. 79.2(

f) Fisheries Act payment, would more than meetthe goals of general deterrence and denunciation. LAW Exhibits and Authorities [21] Counsel filed 13 exhibits during the course of the sentencing and provided the court with 15 cases from various courts in Canada:seven reported decisions and eight unreported decisions. In reaching my decision in the present case, I have reviewed and considered all13 exhibits and the 15 decisions provided by counsel: R. v. Croft, 2003 NSCA 109 R. v. Terroco Industries Limited, 2005 ABCA 141 R. v. Genge, (NL PC) R. v. Henneberry, 2009 NSSC 95 R. v.

Morel, unreported, December 3, 2015, Prince Rupert No. 6329-1, Provincial Court of B.C., Howard, PCJ R. v. Clough, unreported, December 14, 2016, Masset No. 6327-2-C, Provincial Court of B.C., Stewart, PCJ R. v. Masters, unreported, February 20, 2017, Victoria Registry No. 167621-1 and 167621-2-A, Provincial Court of B.C., Rogers, PCJ R. v. Orr, unreported, April 25, 2018, Masset No. 6335-1, Provincial Court of B.C., Stewart, PCJ R. v. Tang, unreported, June 20, 2018, Sechelt Registry No. 17427-1, Provincial Court of B.C., Merrick, PCJ R. v.

Gu, unreported, December 18, 2018, North Vancouver No. 66277-1, Provincial Court of B.C., Smith, PCJ R. v. Henneberry, 2019 NSSC 119 R. v. Le, 2019 BCPC 116

R. v. Ward , 2019 BCPC 277 R. v. Wilshaw , unreported, October 15, 2020, Powell River No. 16600-1, Provincial Court of B.C., Wingham, PCJ R. v. Nguyen , unreported, May 18, 2021, Powell River No. 16261-1, Provincial Court of B.C., Wingham, PCJ. [ 22 ] In addition to the authorities provided by counsel, I have also considered the decisions in: R. v. Spence , 2005 SCC 71 R. v. Brown , 2010 BCCA 225 R. v. Pham , 2013 SCC 15 R. v. Lacasse , 2015 SCC 64 R. v. McKinnell Fishing Ltd ., 2016 BCPC 466 R. v. Schafhauser , 2017 BCSC 2287 R. v. Young , 2021 BCPC 6 , confirmed at 2021 BCCA 462 R. v. F.A.S. Seafood Producers Ltd ., 2021 BCCA 312 . Relevant Statutes [ 23 ]

Section 78 of the federal Fisheries Act reads as follows: 78 Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of

a) an offence punishable on

summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both; or

b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. [ 24 ]

Section 35 of the federal Fishery (General) Regulations reads as follows: 35

(1) This

section does not apply in respect of fish cultivated in an aquaculture facility or in respect of marine mammals.

(2) Subject to subsection (3), no person shall buy, sell, trade, barter or offer to buy, sell, trade or barter any fish unless it was caught and retained under the authority of a licence issued for the purpose of commercial fishing, a licence issued under

Part VII, a licence issued under the Aboriginal Communal Fishing Licences Regulations in which the Minister has authorized the sale of fish or an Excess Salmon to Spawning Requirement Licence issued under the Pacific Fishery Regulations, 1993 . (3) Subsection (2) does not apply if the buying, selling, trading or bartering is carried out in accordance with the terms of the Agreement defined in

section 2 of the Western Arctic (Inuvialuit) Claims Settlement Act , the Agreement defined in

section 2 of the James Bay and Northern Quebec Native Claims Settlement Act or the Agreement defined in

section 2 of the Labrador Inuit Land Claims Agreement Act . [ 25 ]

Section 14 of the British Columbia Fish and Seafood Act reads as follows: 14 An operator must comply with (

a) this Act , (

b) all regulations made under this Act respecting the activity for which the operator is licensed, and (

c) all terms and conditions of the operator's licence. [ 26 ]

Section 54 of the British Columbia Fish and Seafood Act reads as follows: 54

(1) A person who contravenes any of the following provisions commits an offence: (

a) section 3 [failure to ensure safe food] ; (

b) section 4 [failure to be licensed as required] ; (

c) section 5 [possession or distribution of unlawful fish or aquatic plants] ; (

d) section 6 [unlawful possession or distribution of restricted fish or aquatic plants] ; (

e) section 14 [failure to comply with Act, regulations or licence] ; (

f) section 15 [failure to undertake preventive measures, analyses or monitoring or to train and equip employees] ;

(

g) section 16 [failure to meet requirements respecting facilities, vehicles and equipment] ; (

h) section 17 [failure to keep or produce records or make reports as required] ; (

i) section 18 [failure to make reports or comply with orders respecting unsafe food] ; (

j) section 19 [failure to participate in traceability system as required] ; (

k) section 20 (a) [falsely holding oneself out as certified] ; (

l) section 20 (b) [failure to meet prescribed standards] ; (

m) section 35 [failure to comply with order] ; (

n) section 36 [unlawful removal, defacement or alteration of order, notice, mark or tag] .

(2) A person who does either of the following commits an offence: (

a) knowingly gives false or misleading information to a person exercising powers or duties under this Act, or to a person acting under the order or direction of a person exercising powers or duties under this Act; (

b) wilfully interferes with, or obstructs, a person exercising powers or duties under this Act, or a person acting under the order or direction of a person exercising powers or duties under this Act. [ 27 ]

Section 57 of the British Columbia Fish and Seafood Act reads as follows: 57(1) An individual who commits an offence under this Act is liable to the following: (

a) on a first conviction, a fine of not more than $25 000 for each day or part of a day on which the offence occurs or continues; (

b) on each subsequent conviction, a fine of not more than $50 000 for each day or part of a day on which the offence occurs or continues; (

c) imprisonment for not more than 6 months; (

d) both the fine referred to in paragraph (

a) or (

b) and the imprisonment referred to in paragraph (c).

(2) A corporation that commits an offence under this Act is liable to the following: (

a) on a first conviction, a fine of not more than $100 000 for each day or part of a day on which the offence occurs or continues; (

b) on each subsequent conviction, a fine of not more than $200 000 for each day or part of a day on which the offence occurs or continues. [ 28 ] Sections 54 and 55 of the British Columbia Fish and Seafood Licensing Regulations Act read as follows: 54

(1) A seafood processor must ensure that marks made in accordance with this

section are legible, readily visible and permanent.

(2) A seafood processor must ensure that each container of sport caught fish is marked with all of the following: (

a) the species of fish in the container; (

b) the name of the seafood processor, as shown on the seafood processor's licence, and the address of the seafood processor; (

c) the date on which the fish were processed; (

d) the words, "sport caught fish — not for sale".

(3) A seafood processor must ensure that each carton of containers of sport caught fish is marked with all of the following: (

a) the information required under subsection (2) (

b) and (d); (

b) the name of the fisher who harvested the fish.

(4) For the purposes of subsection (2) (c), the date must be expressed in the format "year month day", as follows: (

a) the year must be expressed by using all 4 numerals that comprise the year; (

b) the month must be expressed by using the code that corresponds to the month as shown in the table below: January: JA May: MA September: SE February: FE June: JN October: OC March: MR July: JL November: NO April: AL August: AU December: DE

(

c) the day must be expressed by using the 2 numerals that comprise the calendar date, with the first numeral being "0" if the calendar date is less than 10. 55

(1) A seafood processor who processes sport caught fish must ensure that processed sport caught fish are distributed only to the fisher who harvested the fish.

(2) For the purpose of subsection (1), a seafood processor must have in place a system that does all of the following: (

a) marks or otherwise identifies sport caught fish, on receipt for processing, in a manner that enables a person to readily determine the fisher of the sport caught fish; (

b) maintains the mark or other identification throughout processing and until distribution; (

c) verifies on distribution that the recipient of the processed sport caught fish is the fisher. FACTS [ 29 ] Sandspit Adventures is a sole proprietorship owned by 1369277 Alberta Ltd. The Sole Proprietorship

Summary for Sandspit Adventures states that its Nature of Business is “Hunting & Fishing Camps”. 1369277 Alberta Ltd. is an Alberta company that has been registered in British Columbia as an extraprovincial company under the Business Corporations Act . [ 30 ] Mr. Whiteside first started working as the General Manager of Sandspit Adventures in 2017. Although he was new to the industry, by all accounts, he fell in love with the business and the surrounding community, and decided to make an offer to purchase 1369277 Alberta Ltd. On January 15, 2020, Mr.

Whiteside became the owner of 1369277 Alberta Ltd., but in reality, he had been in charge of Sandspit Adventures’ operations since 2018. He made the decisions regarding the day-to-day operations and he accepted responsibility about how the business was run. [ 31 ] In the summer of 2019, before the COVID-19 pandemic changed the landscape of business in Haida Gwaii and elsewhere in the world, Sandspit Adventures offered Pacific Ocean saltwater fishing tours and eco tours. Situated on Moresby Island, Sandspit Adventures provided an all-inclusive guest experience.

Activities, use of gear, full service lodge accommodation and meals, were included in a single price, depending on length of stay (tips and alcohol not included). Capacity was limited to a maximum of 48 guests at a time, although usually there were far fewer guests at any single time. In 2019, Sandspit Adventures had a total of 213 fishing tour guests and 78 eco tour guests, with no more than 22 guests on site at any time. [ 32 ] For people interested in fishing, Sandspit Adventures offered the opportunity to fish for and catch salmon, rockfish, cod, halibut, and crab.

At the end of the day, one’s catch would be processed, filleted, vacuum packed, flash frozen, and boxed up, ready for the flight home. The cost for four (4) night’s accommodation and three (3) days of fishing, based upon double occupancy, was $3,200 per person. [ 33 ] For people interested in eco tours, Sandspit Adventures guides provided access to the wild Haida Gwaii coast, including the distinct flora and fauna of the archipelago.

The cost fluctuated depending on the length of trip. [ 34 ] In addition to providing fishing tours and eco tours, Sandspit Adventures also has a provincially licensed seafood packaging plant that provides services to its guests as well as other local lodges and individuals who want to pay for its services. [ 35 ] On July 12, 2019, fishery officers with the DFO attended to Sandspit Adventures for an inspection to confirm compliance with the federal Fisheries Act and the provincial Fish and Seafood Act .

The DFO routinely attends to the various fishing lodges in Haida Gwaii to ensure that everybody is playing by the rules. Mr. Whiteside was not present when fishery officers attended on July 19, 2019; however, fishery officers did interview a number of employees, including the manager in charge of accommodations, the head chef, and the foreman of the fish processing plant.

All Sandspit Adventure employees were friendly and cooperative with the fishery officers. [ 36 ] During the course of the inspection, fishery officers noted a number of deficiencies and unlawful practices contrary to the provisions of the federal Fisheries Act and the provincial Fish and Seafood Act . [ 37 ] The head chef told fishery officers that she was preparing and serving recreationally caught fish to guests, and that it was okay for her to do so, because the guests had filled out a letter requesting the chef to prepare their fish for their dinner.

The form letter read: I _________________ fishing licence # __________________ would like to have the Chef at Sandspit adventures cook my catch of the day as our meal one night this week of __________________ for my group supper. Chef ___________________ Please accept this letter in kind for any inconvenience. Thank you.

Signed ____________________ [ 38 ] Based upon what they had been told, a review of work invoices, and the form of letter that was given to guests to be filled out, fishery officers determined that e ven though the all-inclusive cost of the fishing and eco tours included meals, at the request of guests, and sometimes at the direction of staff, fish that had been recreationally caught by guests or the staff of Sandspit Adventures would be prepared by the kitchen and fed to guests contrary to s. 35(2) of the Fishery (General) Regulations . [ 39 ] As the inspection continued, fishery officers determined that in addition to Sandspit Adventures allowing their guests to eat recreationally caught fish at meal time, Sandspit Adventures did not have a proper labelling and storage system in place as required by the Fish and Seafood Licencing Regulations in contravention of s. 14(

b) of Fish and Seafood Act , resulting in multiple offences pursuant

to s. 54(1)(

e) of the Fish and Seafood Act . Specifically, recreationally caught fish was sometimes not properly labelled with the species of fish, date of processing, and the name of the fisher who caught the fish. [ 40 ] Blue storage bins were located and searched in one of the refrigerated areas. According to the foreman, the blue bins were used by the kitchen and were supposed to only contain fish caught by staff members. The foreman explained that when guides showed up with fish and told him that it was “lodge fish”, he would make up a “dummy order” and put a date on it. He would then put the fish into the blue bins.

He said the owners directed the guides on what to do. [ 41 ] Nevertheless, fishery officers determined that the blue bins were also being used to store fish caught by guests. Furthermore, since the vast majority of guests arrived in and departed from Haida Gwaii via Air Canada -- which only allowed and charged for 50 pound containers of fish -- guests would often “donate” any fish in excess of 50 pounds to Sandspit Adventures.

The donated fish would then end up as fishing bait or in meals for other guests. [ 42 ] Further analysis of the work orders by fishery officers resulted in their determining that when guests on fishing tours caught their limit, the excess fish would sometimes be recorded on a guide’s licence. Such a practice is unlawful.

Fishery officers also determined that while work orders properly had the name of a fishing tour guest, the guest’s fishing license number, and the date on which the fish was caught, the packaged fish did not have the corresponding detailed labelling as required by the relevant legislation. [ 43 ] Fishery officers interviewed one of the Sandspit Adventures guides. The guide told the fishery officers that all of his coho salmon was going to the kitchen to feed guests. He advised that all the guides were doing the same thing.

When the fishery officer asked the guide if he fished for crab with the guests, he said “no”, but he then went on to explain that on staff days, they have a big crab feast and any leftover crab goes to the kitchen to feed guests. The guide further advised that crab traps were currently in the water and when asked by a fisheries officer if the crab traps were “fishing for the kitchen”, the guide replied, “It could happen”.

The guide went on to explain to the fishery officers that when Sandspit Adventures needed more crab, they would sometimes exchange their fish scraps from the processing plant to crab fishers in return for crab. The crab fishers would then use the fish scraps as bait on their crab boats. [ 44 ] Mr. Whiteside spoke by telephone with fishery officers twice on July 19, 2019. He also provided a detailed audio-recorded statement to fishery officers on August 31, 2019. [ 45 ] Mr. Whiteside confirmed that his fishing tour guests wanted and expected to be able to eat the fish they caught. To quote Mr.

Whiteside, “You’re in Haida Gwaii. We always catch fish. Let’s be honest, the fishing here is out of this world” and “…they know once they consume it, they can go out and catch another one.” The way Mr. Whiteside saw it, for many of Sandspit Adventures’ guests, eating the fish they caught while on their fishing tour was part of the experience. [ 46 ] Mr. Whiteside also admitted that in 2019 the work invoices and separation of guest caught fish from guide caught fish was not being properly done, albeit out of ignorance and negligence, rather than an attempt to circumvent the law. [ 47 ] Mr.

Whiteside confirmed that he had sought advice from a Mike Lane regarding the feeding of guests the fish that they had caught. Mr. Whiteside did not speak to a fishery officer or DFO representative. In court on August 11, 2021, Mr. Whiteside testified: We spoke with Mike Lane from the Ministry of Agriculture Food and Fisheries, asked him if we could do it in the beginning. Mike said, “restaurants can do it, you have a restaurant, I don't see a problem with it.” That is where we got the idea and the intention of doing that. He said, “you know what, I've been to lodges -- I've been to lodges myself.

You go up, you have a shore lunch. You catch your fish, you go cook it on shore, you go back to the lodge at night, you have fish that was caught through the day.” Did not realize this was an issue. Did not realize it was illegal. [ 48 ] After speaking with Mr. Lane, Mr. Whiteside developed a plan to have fishing tour guests signed a letter in advance requesting the opportunity to eat the fish that they had caught. Mr. Whiteside was insistent that there were all sorts of restaurants and lodges also cooking and serving to their patrons the fish that the patrons had caught. [ 49 ] Mr.

Whiteside went on to confirm that he knew he could not be serving recreationally caught fish to eco tour guests and that Sandspit Lodge had not been purchasing commercially caught and processed fish to serve to its guests. Rather, when Sandspit Adventures served fish as a meal to its fishing tour guests, one of the guests would have given up their fish and that fish would be cooked for the group. [ 50 ] Mr. Whiteside stated that the blue bins were staff bins, for the use of staff members who pooled all the fish together. Staff members would share their fish when they took it home.

He specifically stated that the chef was not to be using the fish in the blue bins to prepare meals and serve to guests. He also denied that staff caught fish was being served to guests, but did admit that staff members did not put their names on the fish in the blue bins. Rather, they would just write “staff” or “lodge fish” on the packaging. He also confirmed that if the guides’ coho salmon was being served to guests, it should not have been. According to Mr.

Whiteside, “a fraction” of the staff and guide caught fish was being used in the kitchen and served to guests: “less than five percent”. [ 51 ] In relation to crab, Mr. Whiteside explained that Sandspit Adventures served crab to guests because they pull the crab traps and they want to eat the crab they have trapped. He admitted that commercial crab fishers get fish bait from Sandspit Adventures, but denied that Sandspit Adventures got crab from crab fishers in return.

He also confirmed that Sandspit Adventures guests trapped the crab eaten in the dining hall. [ 52 ] Based upon the documentation and fish seized from Sandspit Adventures on July 12, 2019, the DFO has put an estimate of approximately 1,200 pounds of fish -- a combination of halibut, cod, chinook salmon, coho salmon, crab, and rockfish -- being improperly labelled, allocated or otherwise unlawfully utilized by Sandspit Adventures to feed its guests and staff, as of the date of the DFO inspection. [ 53 ] Mr. Whiteside argues otherwise. Mr.

Whiteside believes that the DFO seized approximately 126 pounds of fish from Sandspit Adventures on July 12, 2019. Mr. Whiteside further opines that the DFO has grossly inflated the actual amount of fish in 2019 that was

improperly labelled, allocated or consumed by his guests on or before July 12, 2019. In making his calculation, Mr.

Whiteside reliesupon the low number of guests that stayed at Sandspit Adventures in 2019 between the start of the fishing tour season until to the date ofthe inspection. [54] For purposes of the sentencing, what matters is that the scheme employed by Sandspit Adventures, while not sophisticated, didallow for a competitive edge over similar lodges, resulting in a small, but not insignificant, cost savings to Sandspit Adventures in fishthat it did not have to purchase from a third party for meals eaten by its guests.

It also skewed the allocations of fish between Indigenous,commercial, and recreational fishers and showed a disregard for the important fishery-related regulations. DISCUSSION [55] 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 Terroco IndustriesLimited.

In doing so, the Court of Appeal reinforced that sentencing principles for environmental offences require a special approach,with specific emphasis on the areas of culpability, past involvement with the authorities, acceptance of responsibility, harm, anddeterrence. [56] Four years ago in Schafhauser, a

summary conviction appeal case involving a commercial salmon fisher in Haida Gwaii who,like Sandspit Adventures, was subjected to a random DFO inspection, Justice Punnett confirmed that: [11] The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource and any contravention of it must betaken 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] 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 by thecommercial fishing community generally and specifically by Mr. Schafhauser.

I note that many of the authorities refer to the fact that apenalty should be more than simply a cost of doing business. In particular, in this instance, that is significant because this is a regulatorystatute designed to preserve a valuable resource. In sentencing on regulatory offences, our Court of Appeal has accepted the followingsentencing principles: culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, and deterrence(see R. v. Terroco Industries Limited, 2005 ABCA 141 , 2005 196 C.C.C. (3d) 293, a decision of the Alberta Court of Appeal,pages 304 to 311; and R. v.

Brown, 2010 BCCA 225, at paragraph 13). [57] Upon my review of Terroco Industries Limited, Brown, and Schafhauser, I conclude that the provincial Fish and Seafood Act isdesigned to protect and preserve a valuable resource and any contravention of it must be taken seriously. Just like with the Fisheries Act,the predominant sentencing consideration for offences committed contrary to the Fish and Seafood Act is deterrence, both specifically ofthe person being sentenced and generally of other members of the public who are inclined to commit the same or similar acts. Culpability [58] I accept that Mr.

Whiteside feels horrible about breaking the law and that Sandspit Adventures did so out of ignorance andMr. Whiteside’s failure to properly research what he was getting himself into. Mr. Whiteside clearly did not know what the actual ruleswere for operating a fishing and eco tour business such as Sandspit Adventures. In other words, there was a failure to exercise duediligence. [59] The following quotes from Mr. Whiteside’s testimony on August 11, 2021, sum up the situation nicely: . . . I was horrible with my staff. I didn't monitor them, how they were catching their fish.

If I sent some staff, and I have staff of 15young kids that work for me, college kids, high school kids that work in and around the lodge, as a treat, we'd send them out fishing. So,what we would do is, the end of the day, they'd come back to the lodge, they'd probably write down lodge. It would all go into a bin forthe kids. We are limited for supplies. We are limited for space at our lodge. We have two freezers, walk-in. One is for -- strictly forclients and -- and guides, one is for kitchen supplies and the staff fish.

We were posting it and putting it in totes, community totes whichnow, learning the full extent of the law, we do not do that at all anymore. Everybody gets their own individual fish; everybody gets theirown individual work order. I feel horrible, I feel sick about it. I -- you know what I'm -- I'm a conservationist. 2018 is when we adopted the practice of, you know what, if somebody wanted fish, sport caught, cooked, we clarified it with theMinistry of Agriculture Food Fisheries, they've stated it was okay. They didn't see a problem with it. I did not phone DFO.

I took theassumption, which is bad on my part, that the people that issue the sport caught licence should have the facts and the rules. I had a pescatarian fish cutter who, at the end of the day, didn't like killing fish, but he said, you know, I hate seeing waste. So, a salmoncarcass would be filet off. He would scrape through the ribs and make a bag of meat for himself for the winter. I didn't see a problemwith that… So, rather than throw it out in the ocean, he thought he was doing himself a service by scraping because he didn't like to killfish.

But he found no issue with it, nor did I at the time, not realizing we were breaking the law. We've changed our practices to match all the law. We participate in the Salmon Head Recovery Program too. THE COURT: I just want to make sure I have this right. So, client A says, "I want my fish." A Yeah.

THE COURT: Client B, who's with a different group, says, "I want to eat my fish." Client C, who's with a different group, says, "I want to eat my fish." In all three cases, they have chinook salmon. A Right. THE COURT: One of the chinook salmon would be enough to feed all three groups, so they'd only cook one of them and feed it, so the other two B and C, their fish would not be cooked or fed to them. A Correct, unfortunate -- CNSL A. SWITZER: But it would be marked lodge and put in the bin? A Unfortunately, yes. CNSL A.

SWITZER: Q And you'd -- you do agree with me that then that fish, the leftover fish was used for cooking other meals for other people as well? A Yes, it would have been, Your Honour, I -- Q And -- and she wasn't making a separate menu where she'd give a quarter of the guests fish and then she'd make steak for the rest of the guests? A After our infraction and learning what we were doing was completely wrong, we changed that a hundred percent. I never really touched that blue bin. We have six sections of a business that operate and I kind of manage them all.

I put people in charge that I trust and I let them do it. I'm not a micromanagement kind of guy. I have enough on my plate. The paperwork got sloppy. It's a horrible practice, going forward, after inspection, it was a horrible practice to not have more inspection of my own person going down there, going hey guys, we can't do this, this is how it has to be. The Fish and Seafood Licensing Regulation was too big to read online.

And I will say this, our practice -- if there was leftover fish from guests, at the end of year, there's a lot of elderly people in Sandspit that have grown up on the coast, don't have boats anymore, you know what, I've can name five people that I've gone over and said, hey, here's a big tub of fish. I know you love it; you don't get out to fish, there it is. And again, that's bad on us, but it's -- it's a waste of a natural resource that as a – an outdoorsman, you share your harvest and – and we've lost sense of community there…. We -- we, as a society, have lost sense of a community that way.

For me to give fish to an elderly couple that can't go, I don't see a problem with that. I don't see a problem with time going down there. Now, would I give that out, or even practice that anymore? No. But if I went and caught fish and I was at my residence and I can give it to them, I will absolutely continue that practice on my own personal fish and which is -- once I'm in my residence, I can give fish to anybody. So, that is within the law. But would I do this practice anymore? Absolutely not. This is the very first year we've had an infraction. We have a new cook in the kitchen.

We have a bunch of new staff and I'm not there. I still take the onus on it, it's my bad. I should have had a better control of my -- my operation. It could add up to -- to 1200 pounds moving through the blue bins. I'm -- I'm saying I know that if it says SA, it probably was staff. They've got it clearly marked when we – were asked by a client to bring it up. It says lodge and that's where -- on our -- on -- on our -- yeah, that – that was poor paperwork from start to finish and . . . Obviously, I seen a couple photographs where there was no label on anything.

And I don't know if the kitchen took something up that was thawed, brought it back down, threw it in a vac pack, stuck it in there. I do not know. That -- that was a hundred percent negligence on our part that we did not follow those steps for our internal staff our. So, our housekeeping and kitchen and cleaning staff that I took out fishing. Obviously, we had some mix-ups between Becky and Nassimo on where she was taking fish from and I can't deny that. Because you know what, she admitted it, she had taken it from the shelf, she took it from tubs, she took it from anywhere she pleased.

And I was unaware of that until this inspection happened. We set the blue bin up so that if a lodge fish was caught from a guest to put in it, that was where it was supposed to be. After the initial process, it got, obviously, totally confused and nobody was carrying practices, communication was a breakdown. [ 60 ] Sandspit Adventures is a smaller operation with limited financial resources. Mr.

Whiteside had never worked at, never mind general managed, a fishing lodge prior to his involvement with Sandspit Adventures. [ 61 ] Financially, Sandspit Adventures has not been a thriving business, but business was improving prior to the COVID-19 pandemic. Having recorded a net loss in 2017 of $130,000, Sandspit Adventures recorded a net profit in 2018 of $317 and a net profit in 2019 of $13,021.

A combination of the COVID-19 pandemic and the restrictions placed on travel and tourism by both the provincial government and The Council of the Haida Nation meant that the 2020 fishing and eco tour seasons were cancelled, resulting in a net loss of $170,000 for the year. In 2021, despite the start up again of fishing and eco tours, Sandspit Adventures has recorded a net loss of $40,000. [ 62 ] I further note that with the exception of the July 12, 2019 DFO inspection and the fallout that resulted from failing the inspection, Sandspit Adventures has had an excellent track record with the DFO.

In 2017, Sandspit Adventures was inspected twice, and

there were no violations. In 2018, Sandspit Adventures was inspected twice, and there were no violations. In 2019, Sandspit Adventures was inspected on three occasions, and there were no violations on the first or third inspections. In 2020, due to the shutdown of the fishing and eco tour industry, there were no inspections.

In 2021, there have been three inspections, with no violations. [ 63 ] In support of her submission asking the court to impose fines totalling $75,000 plus a further $40,000 in payments for the purposes of promoting the proper conservation, management and control of fisheries and fish habitat in the Haida Gwaii area, Ms. Switzer stated the following on August 11, 2021: So in summation, I can say this, with respect to culpability in this case, regarding the processing aspect of the offence, these are the absolute basics.

Any review of the legislation with respect to what one ought to do when it comes to processing sport caught fishery -- fish, there's a -- it's a relatively short list of what must be done with that fish. And that -- for some of the fish that was coming through this lodge and in particular, the fish that was ending up in the kitchen, none of those things were being done. And so, one would expect that that would be known and that would be enforced. Those rules should be everywhere. No fish can be going out without the name of the fisher on it.

Presumably, it was known, because the actual guest fish was properly marked. So, a decision was made. But this is the absolute basics of what's expected. And so, significant penalties are required when that is overlooked. And even -- I would say, even looking at these -- these basic list of things that must be done to sport caught fish that's being processed at this processing facility makes clear that you can't be feeding it to your guests. So, if there's some question in your mind, the language is absolutely clear about what needs to be done. . . .

And so, in terms of culpability, I would say this -- these offences fall on the scale between intentional and extreme recklessness. And also, with respect to the fish as food, we know that they were serving whitefish that very evening and there's, of course, the acknowledgment that the guests were not just feeding themselves. With respect to the crab, we know that the cook said the crab came from the staff, you know, the staff fishing. We know that the guide said that it came from the staff fishing. There was some other talk about some other crab. But even if we accept Mr.

Whiteside's statement that, no, no, the guests were pulling this with the staff, again, that couldn't be served in the way that it was. We also know that this was happening, at a minimum, on Mr. Whiteside's evidence, weekly and on the head chef, who's the one preparing the food and with respect, she's the one who knows what's going out, twice per trip, which is really more three and a half to four times per weekly, depending on how you break up the week because there's essentially two trips happening in a week. So, this is happening on a very regular basis.

We know, under the Fisheries Act , these penalties are imposed. There's a maximum penalty of a hundred thousand dollars. That's per day that the offence takes place and these are between day counts. So, when we look at that and we look at all the different species that are happening and all the different days that we know that it would have been happening, when you break down what the -- what the Crown's suggesting, in terms of penalty, that just is just over $11,000 per species that were particularized.

It's -- it's not a significant fine in light of what we're -- what we're talking about for the duration and the extent of what was going on. So, I would say the culpability is very high here and the Crown's sentencing position is in fact quite reasonable. And that's why it's necessary for there also to be a penalty to reflect the profits made. Past Involvement with the Authorities [ 64 ] Mr. Whiteside does not have previous involvement with the authorities. Acceptance of Responsibility [ 65 ] Mr. Whiteside has personally accepted full responsibility for the offences.

In many cases when an owner or director is charged jointly with a corporate entity, and an agreement by way of plea bargain is reached, the corporate entity pleads guilty in exchange for a stay of proceedings or withdrawal of charges against the owner or director. That did not happen in the present case. [ 66 ] Moreover, as a result of the 2019 DFO inspection and the resulting charges against 1369277 Alberta Ltd., Sandspit Adventures, and Mr. Whiteside, Sandspit Adventures has changed the way it does business and is now in full compliance with the law. [ 67 ] I am also cognizant that Mr.

Whiteside did not attempt to raise a s. 78.6 (

b) Fisheries Act defence in relation to his reliance on Mr. Lane’s advice regarding the feeding of recreational sport caught fish to Sandspit Adventures’ guests.

Section 78.6 reads: 78.6 No person shall be convicted of an offence under this Act if the person establishes that the person (

a) exercised all due diligence to prevent the commission of the offence; or (

b) reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent. Harm [ 68 ] With respect to the damage and harm done in this particular case, what the offences committed by Mr. Whiteside did was enable commercial level supplies to be taken out of the recreational supply and then supplied into the restaurant run by Sandspit Adventures. [ 69 ] I appreciate that in 2019 not all 2 13 fishing tour guests and 78 eco tour guests attended Sandspit Adventures before the July 12, 2019 DFO inspection. On August 11, 2021, Mr.

Whiteside testified that from the opening of the 2019 season to July 12, 2019, Sandspit Adventures had 51 guests. N evertheless, we are talking about a significant number of c rab dinners, salmon dinners, sushi rolls, smoked

halibut appetizers, seafood salads, and other dishes that were prepaid for fishing and eco tour guests, but cost Sandspit Adventures only the labour to prepare at a significant dollar savings for Sandspit Adventures. [ 70 ] The court also has to consider the impact if all fishing and eco tour companies acted as Sandspit Adventures did in 2019. Not only would it take money out of the commercial fishery, it would allow fishing tour guests at all lodges to catch and retain more fish than they would have otherwise been able to catch and retain during the course of their vacation.

It would also enable fishing guides to surpass the possession limits of their licenses. [ 71 ] In the result, Mr. Whiteside’s offences gave Sandspit Adventures a competitive advantage over other fishing lodges in Haida Gwaii. His offences saved Sandspit Adventures thousands of dollars that would have had to been spent purchasing commercial fish. Over the long term, such a practice has an impact on the actual fishery and the management of the fishery. Why? Because as noted by Ms.

Switzer on August 11, 2021 in her submissions before the court, “these people who are managing it are making calculations and they're actually using the data from these lodges and now there's a huge data set that's invisible and it's not being properly recorded.

It's inviting or encouraging employees and guests to commit offences.” [ 72 ] The comments of Judge Mrozinski at paragraphs 43 to 46 in McKinnell Fishing Ltd. , a case that dealt with British Columbia’s crab fishery, are equally applicable to the present case: [43] Those benefiting directly, both economically and otherwise, from this resource are of course First Nations, who are interested in preserving their aboriginal right and interest in the crab fishery, recreational fishers and commercial fishers.

Indirectly, of course, all residents of British Columbia benefit from a sustainable and vibrant fishery. [44] The value of this resource to British Columbians, coupled with the decline in the crab harvest, serves to underscore the importance of resource management. 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. [45] As the Crown notes in its submissions, the nature of the crab fishery is such that catch is the only indication of abundance.

This fact mandates that the crab fishery occur in a highly regulated environment, and it is only when everyone complies with the regulations and licencing requirements that we can ensure a sustainable fishery for the benefit and enjoyment of all and that includes the defendant herein. [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. Deterrence [ 73 ] In Henneberry , a Nova Scotia fishing case on appeal by the Crown from the Provincial Court to the Nova Scotia Supreme Court, Justice Edwards noted that counsel for Mr.

Henneberry had argued in the Provincial Court that the offence was properly characterized as a technical breach of the law, because the halibut had been legally caught and it was only the sloppy recording by Mr. Henneberry, in failing to properly record an up-to-date record of his fishing activities and all catch in his logbook, that was unlawful.

In dismissing the argument, Justice Edwards stated the following: [39] In his submission to the sentencing judge, Respondent’s Counsel had argued: “So I submit there’s nothing illegal about the catch. . . if they had fished them illegally, is they had caught them illegally, I submit there would be a much stronger case for a much stronger penalty. These were not caught illegally. These were not properly accounted for.” [40] That is an argument that invites a strong rebuttal. As I noted earlier, the catch is not legal unless it is properly recorded.

The recording requirement is a fundamental condition of the licence to catch halibut. Any halibut caught but not “properly accounted for” are illegally caught. It is an illegal catch. Fishers have to understand that the Court will not treat the failure to make a log entry as a mere lapse in accounting. [41] The foregoing deserves extended emphasis. A fisher who does not comply with the conditions of his/her licence is effectively unlicenced. He/she is not fishing legally. There is no wiggle room in the conditions; you are either in compliance or you are not.

If you are not, as a minimum, the unrecorded portion of your catch is illegal and subject to forfeiture. [ 74 ] Given Mr. Whiteside’s circumstances and the changes made since July 12, 2019 by Sandspit Adventures, I accept what Ms. Turton has urged upon the court: that Mr. Whiteside has already been specifically deterred by this entire experience. On the other hand, general deterrence demands a significant financial penalty for Mr. Whiteside to dissuade o ther fishing tour operators and members of the public who are inclined to commit the same or similar acts.

COVID-19 and Collateral Consequences [ 75 ] As set out by the Supreme Court of Canada in Pham , a sentencing judge may exercise his or her discretion to take collateral consequences into account when rendering their decision, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. Collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.

As set out in Pham at paragraphs 11 and 12 : [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the

particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders ( s. 718 (

d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. [12] However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows: As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences.

While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . . . . . The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear.

Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community.

The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added.] ( The Law of Sentencing (2001), at pp. 136-37) [ 76 ] In an unusual twist, unlike in Pham , where immigration consequences formed the basis for the collateral consequences analysis, and unlike in Young , where the collateral consequences of sending a person with severe health issues to jail during the COVID-19 pandemic formed the basis of the collateral consequences analysis, in Mr.

Whiteside’s case, it is the economic impact of the COVID-19 pandemic on Sandspit Adventures and Mr. Whiteside’s corresponding ability to pay fines that I have to consider. [ 77 ] As alluded to earlier, it is clear that the COVID-19 pandemic has had a devastating effect on the Haida Gwaii fishing and eco tour industry generally and Sandspit Adventures in particular. In 2020, Sandspit Adventures suffered a net loss of $170,000. In 2021, as of November 16, Sandspit Adventures has recorded a net loss of $40,000. [ 78 ] Unfortunately, while I have been told by Ms.

Turton of the financial impact the COVID-19 pandemic has had on Sandspit Adventures, which I appreciate is now owned solely by Mr. Whiteside, I have not been told anything about Mr. Whiteside’s personal ability to pay the fines that are going to be imposed by the court in the present case. I do not know if Mr. Whiteside is destitute, a multi- millionaire, or somewhere in between. [ 79 ] Accordingly, I am unable to find that COVID-19 has impacted Mr. Whiteside’s ability to pay fines. CONCLUSION [ 80 ] In fashioning a sentence specific to Mr.

Whiteside, I have kept in the forefront of my mind the Supreme Court of Canada’s teachings in Lacasse and, as stated earlier, I have considered the case law provided by counsel. I have also considered Mr. Whiteside’s moral blameworthiness, which I find to be in the middle of the scale. He received bad advice from Mr. Lane, which he followed. He did not set out to break the law. On the other hand, Mr. Whiteside did not research or learn the fine points of labelling and storing fish. He did not properly supervise his employees.

He did not reach out to the DFO to ensure that Sandspit Adventures’ policies and practices were in keeping with the federal Fisheries Act and the provincial Fish and Seafood Act . [ 81 ] 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 in relation to sentences given to other offenders in similar situations. [ 82 ] 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. [ 83 ] At paragraph 56 of Lacasse , with respect to 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. . . [ 84 ] In light of the positions taken by counsel and the evidence provided to the court, I find as a fact that the fisheries in Haida Gwaii for chinook salmon, coho salmon, rockfish, cod, halibut, and various species of crab have been significantly impacted over the years by mismanagement, overfishing, and the failure of corporations and individuals, including Mr. Whiteside in the summer of 2019, to follow the rules and good old fashioned common-sense.

Accordingly, in my opinion, the imposition of a s. 79.2 (

f) Fisheries Act payment in the present case would survive the test as set out in F.A.S. Seafood Producers Ltd. I further believe that this is the type of case that a significant s. 79.2 (

f) Fisheries Act payment could and probably should be made for the purposes of promoting the proper conservation, management and control of fisheries and fish habitat in the Haida Gwaii area. [ 85 ] Nevertheless, based upon Ms. Switzer’s reply on November 16, 2021 to my question regarding the impact of F.A.S. Seafood Producers Ltd. on Mr. Whiteside, it is now apparent to this court that a mechanism is not currently in place to allow for a court ordered s. 79.2 (

f) Fisheries Act payment that would comply with our Court of Appeal’s directive. Paragraphs 56 and 57 of F.A.S. Seafood Producers Ltd. state : [56] How does this all apply to this case? There is broad discretion provided the sentencing judge by s. 79.2 (f). In my view, at a minimum, there must be some identification of the purpose of an order under s. 79.2 (f), and the reason such a payment should be ordered in addition to independently assessed punishment. I agree with the

summary conviction appeal judge in his para. 32, that: “Some nexus between the nature of the offence and the objective of the payment order appears to be a requirement.” There should be a thread of connection between the particular offence in question and the order. Thus, for example, an offence in northern waters involving black cod would not support a payment for the purpose of repairing oyster beds off Vancouver Island. Yet the offence need not have caused actual damage to fish, fish habitat, or the management of the fishery, and there must be some identifiable prospect that an additional payment under s. 79.2 (

f) will promote the purposes of the subsection and the Act in relation to the offence. It should not become the main order, and it cannot be directed to a private organization or earmarked for a particular use by the government. It must, in Justice Tysoe’s words, “be proportionate to the gravity of the offence and the degree of responsibility of the offender” and “serve as an appropriate deterrent to potential offenders”. [57] Further, a payment under s. 79.2 (

f) must be proportionate to the offender’s ability to pay after considering all fines or forfeitures imposed, and must be reasonable in amount. It is not a blank cheque, and because it is only engaged on commission of an offence, it involves in some fashion an aspect of culpability and promotion of deterrence and denunciation. [ 86 ] As a result, I will not be imposing a s. 79.2 (

f) Fisheries Act payment in the present case. Furthermore, I decline the opportunity to add the $40,000 payment that Ms. Switzer had requested be made by Mr. Whiteside as a payment pursuant to s. 79.2 (

f) of the Fisheries Act in addition to the fines that I am imposing in this case. [ 87 ] In all the circumstances, I am of the view that the appropriate penalties for Mr. Whiteside are as follows:

a) In relation to Count 5, a fine of $45,000 . Time to pay will be December 31, 2024.

b) In relation to Count 6, a fine of $5,000 . Time to pay will be December 7, 2022.

c) In relation to Count 7, a fine of $5,000 . Time to pay will be December 7, 2022.

d) In relation to Count 9, a fine of $10,000 . Time to pay will be December 7, 2022.

e) In relation to Count 10, a fine of $10,000 . Time to pay will be December 7, 2023. [ 88 ] That is a total of $75,000 in fines Mr. Whiteside. If you require further time to pay the fines, you must apply in writing to ask the court for an extension. [ 89 ] I am waiving the requirement that Mr. Whiteside sign a Time To Pay form, given that he has appeared before the court virtually today by way of MS Teams videoconferencing. _____________________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia