R. v. Smith Date:, 2015 BCPC 282

Citation: R. v. Smith Date: 20150923 2015 BCPC 0282 File Nos: 36257-1, 362570-2-A, 36272-1, 36272-2-A Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALAN CLARENCE SMITH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: I. McFadgen Counsel for the Defendant: A. Penhall (Duty Counsel) Place of Hearing: Campbell River , B.C. Date of Hearing: September 23, 2015

Date of Judgment: September 23, 2015 [ 1 ] THE COURT (Orally): Alan Clarence Smith is before me. Mr. Smith was set to deal with four charges that are before the court set for trial on today's date. These matters had previously been set to be dealt with on June 30, 2015. Mr. Smith failed to attend at that time in order to deal with these various charges under the Fisheries Act . [ 2 ] Today an application was made by Mr.

Smith, with the assistance of duty counsel, to apply to withdraw previous pleas of not guilty to four offences under the Fisheries Act and to enter a voluntary plea of guilty with respect to the four offences contained on two Informations. Prior to accepting pleas of guilty on those matters, I canvassed and was satisfied that voluntary pleas were being entered with respect to these matters. I specifically canvassed with Mr.

Smith the provisions of s. 606(1) and (1.1) of the Criminal Code , in order to satisfy myself. [ 3 ] The four offences under the Fisheries Act are as follows. [ 4 ] Count 1 on Information 36257 alleges that Mr.

Smith: ... on or about the 28th of June, 2012, at or near Kyuquot, in the Province of British Columbia, while fishing under the authority of a Commercial Prawn and Shrimp Trap Licence, did fail to comply with conditions of that licence, namely did fail to submit the completed log pages (original copies) and electronic copy of the log from May 2012, within 28 days following the end of each month in which fishing occurred, contrary to the conditions of his commercial Prawn and Shrimp Trap Licence and contrary to s. 22(7) of the Fishery (General) Regulations, thereby committing an offence contrary to s. 78 of the Fisheries Act . [ 5 ] Count 2 on that same information is a similar allegation, but in that case, it is the failure to submit the completed log pages and the electronic copy of the log from June 2012 within 28 days. [ 6 ] On Information 36272-1, again, that is a similar allegation on Count 1.

In that count, it is alleged that on or about the 29th of June, 2013, Mr.

Smith failed to comply with the condition of submitting the completed log pages from May 2013 within 28 days following the end of the month, that being contrary to the same provisions of his licence and contrary to the same provisions of the Regulations and the s. 78 of the Fisheries Act . [ 7 ] Count 2 of the same information, 36272-1, is a similar allegation of failure to complete the submission of the completed log pages on the 29th of July 2013, and that was from the June 2013 fishery, again contrary to the same provisions of the licence and also of the Fishery (General) Regulations and the s. 78 of the Fisheries Act . [ 8 ] The fifth matter and guilty plea deals with the failure to appear at trial of the fisheries matter, set for the 30th of June 2015.

That offence is set out on Information 36257-A-2. [ 9 ] Crown outlined the circumstances with respect to these offences; the essential elements have been admitted by the guilty plea. It is worth summarizing very briefly what occurred. [ 10 ] In essence, with respect to Information 36257-1, the required log pages were not submitted within the time periods contained within both Counts 1 and Count 2. Letters were sent out from the Department of Fisheries to the owner and holder of the licence demanding compliance. It is my understanding that Mr.

Smith was the vessel master of the vessel in question and was the person responsible for fishing and completing the logs. [ 11 ] The letters were sent to the person or persons, as I understand it, known to be the owner and the holder of the licence. As it turns out, Mr.

Smith himself is a part owner of both the boat as well as the licence. [ 12 ] The letters that went out resulted in submission of the required information on January 18, 2013, some months after the date on which it was required to be submitted. [ 13 ] With respect to the Information 36272, again it was a similar set of circumstances whereby the required logs were not submitted in a timely fashion within the time limits.

However, the log book information was submitted with respect to the two periods in question in 2013, by November 22nd, 2013. [ 14 ] With respect to the failure to appear at the trial of these matters set on the 30th of June 2015, my understanding is that Mr. Smith did not appear personally at that time, however did send somebody as an agent to appear on his behalf. That was an actual trial date. Accordingly the agent's attendance was not useful in terms of dealing with the matters on those dates, hence the charge on Information 36257-A-2. [ 15 ] The sentencing position of Crown is shaped by a number of factors.

The first is the nature of the requirement to maintain harvest logs in a commercial prawn fishery. The concerns in that regard are set out in a victim impact statement admitted into evidence. That impact statement has been produced by Fisheries and Oceans under the authorship of Laurie Convey, described as a Resource Manager, Biologist, Prawn and Shrimp Trap Fisheries, Fisheries and Oceans Canada, and is dated March 4, 2013. [ 16 ] The impact statement is useful insofar as it speaks in terms of the nature of prawn fisheries in Canada.

In the impact statement, it states as follows [as read in]: Commercial prawning is a competitive fishery. There is no individual vessel quota. Commercial fishers attempt to catch as many prawn as possible in open areas.

[ 17 ] The impact statement goes on to speak in terms of the importance of the harvest log. The harvest log is described as an essential means by which the Department of Fisheries and Oceans can track the required information in order to manage the prawn stocks. The harvest log is described in the following fashion: A harvest log or log book is a daily fishing record that a vessel master is required to complete under the terms and conditions of the commercial licence. The harvest log describes gear, characteristics, catch, location of catch, and the amount of effort required to harvest that catch.

This information is not available from fish slips or any other data sources.

Harvest log data is used to assess trends in effort and catch, addressing conservation and sustainable utilization questions. [ 18 ] The victim impact statement also goes on to state as follows: Harvest log data may be used for environmental risk assessment, for coastal development, to protect sensitive habitats, to determine compensation for environmental insults such as oil spills, and in consideration of treaty negotiations with First Nations. [ 19 ] The impact statement also notes that Canada is a signatory to the United Nations Food and Agricultural Organization's "Code of Conduct for Responsible Fisheries." It is in connection with Canada's signatory obligations that the practice of harvest logs has been implemented as a means of complying with the technical guideline requirements for responsible fisheries. [ 20 ] Under the heading of "Impact of Late Harvest Log Reporting," the victim impact statement indicates that the information must be submitted in a timely fashion in order to meet the requirement of data accuracy.

It is indicated in the victim impact statement as follows: Data accuracy declines quickly if the daily information recording is delayed to another day, or in some cases two months later. Fishers can adversely impact the accuracy of data by delaying or withholding information, inaccurately recording information or deliberately misrepresenting information (under report catch or alter locations of catch). Information deficiencies on harvest logs jeopardize conservation and the sustainability of the fishery.

The ability of the department to consider events or trends in the fishery which may require changes or corrections to the management strategy in development of future fishing plans, and to consult with industry representatives and negotiate changes to the fishery, is compromised when information about fishing practices is incomplete or inaccurate due to reporting delays. [ 21 ] The victim impact statement goes on to say that elected representatives of the Prawn Sectoral Committee have repeatedly advised the Department that enforcement actions should be pursued against vessel masters who fail to provide harvest log information in a timely fashion.

Non-compliance is an incentive for other fishers to disregard licence conditions in order to remain competitive. [ 22 ] Based on that, it is submitted by Crown that in matters of this nature, which are strict liability offences under the Fisheries Act , the goal of sentencing must be both general and specific deterrence. On that basis, Crown suggests that I must take into account not only Mr.

Smith's past convictions under the Fisheries Act , but also establish a fine that will meet the goals of both specific and general deterrence. [ 23 ] Therefore, Crown is suggesting that there be a fine of $500 on each fisheries count, for a total of $2,000. With respect to the failure to appear, Crown is suggesting that there be a fine of $250. [ 24 ] I have heard submissions on behalf of Mr. Smith. He is a member of the Kyuquot First Nation. He is 39 years of age. He lives on his boat on the foreshore of Kyuquot, here in the Province of British Columbia. He has completed his grade 7 education.

He has some literacy issues and trouble reading. Notwithstanding that, he does candidly admit that he could have and should have had someone read the provisions of his licence to him. [ 25 ] He lives on his boat. He started prawn fishing for the first time back in 2012, and he fishes, as I understand it, about nine months throughout the year. He lives with a partner. He has a 13-year old son who resides with him.

He also has a daughter who lives with the biological mother in Campbell River. [ 26 ] The suggested disposition of this matter is presented to me as a joint submission, however, with the additional factor to consider, namely that Mr. Smith will be put under some economic hardship in terms of meeting the fines that are suggested be imposed upon him. [ 27 ] Having regard to all the circumstances and taking into account that deterrence is one of the main goals of offences under the Fisheries Act , I accept that the proposed disposition is an appropriate one. It does amount to a fit sentence.

It meets the goals of not only deterring Mr. Smith from further conduct of this nature but also others who may contemplate doing the same. [ 28 ] He has prior convictions for fisheries offences. Those convictions go back to 2006 offence dates, which were disposed of in 2010. For those contraventions of the Fisheries Act or Regulations, he received a $500 fine.

He had a similar series of convictions dating back to an offence date of January of 2012, which were disposed of on the 18th of February 2015, resulting in fines of $300 on each of the ten counts. [ 29 ] In support of the sentencing position, I have been referred to a decision of Judge MacKay in R. v. Eric Martin Phillips , Masset Registry, File Number 6314-1. In that case, it was a similar type of offence but under the terms and conditions of a crab licence. In that

case, the offender, Mr. Phillips, did not have any prior convictions for these types of offences. In disposing of the matter, again, Judge MacKay put considerable reliance on concerns of deterrence and providing warnings to other individuals who may engage in these types of offences. Accordingly, on the three counts that were before the court, Judge MacKay imposed on the first-time offender a fine, on the first count, of $500, a fine, on the second count, of $750, and a fine of $1,000 on the third count. [ 30 ] Notwithstanding that Mr.

Smith has prior convictions, I am satisfied that what is being proposed here is a suitable sentence and a fit and proper sentence. [ 31 ] Accordingly, I will impose the fines of $500 on each count, for a total of $2,000; there will be a $250 fine for the failure to appear. [ 32 ] I will give Mr. Smith one year to pay all of the fines and the victim fine surcharge, which attaches only to the failure to appear charge. [ 33 ] That concludes my reasons. Are there any other matters which I should deal with in order to complete this? [ 34 ] MR. McFADGEN: Yes, Your Honour.

With respect to the 36272-2-A -- [ 35 ] THE COURT: Yes. [ 36 ] MR. McFADGEN: -- Crown can direct a stay of proceedings. [ 37 ] THE COURT: That will be recorded. Thank you. [ 38 ] MR. McFADGEN: And, Your Honour, Mr. Smith will just have to be directed downstairs to sign [indiscernible]. [ 39 ] THE COURT: All right. [ 40 ] Thank you, Mr. Smith, you understand, there is some documentation for you to sign at the Registry. [ 41 ] MS. PENHALL: Thank you, Your Honour. [ 42 ] MR. McFADGEN: Thank you, Your Honour. [ 43 ] THE COURT: Thank you, Ms. Penhall. And thank you for your assistance today. [ 44 ] MS.

PENHALL: You're welcome, Your Honour. (REASONS CONCLUDED)