R. v. Steer Date:, 2013 BCPC 323

Citation: R. v. Steer Date: 20131126 2013 BCPC 0323 File No: 72718-C-5 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SCOTT STANLEY MATTHEW STEER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: M.S. Ball Counsel for the Defendant: M. Fane Place of Hearing: Nanaimo , B.C. Dates of Hearing: July 29, October 24 and November 26, 2013

Date of Judgment: November 26, 2013 Background [ 1 ] Mr. Steer was the master of the fishing vessel Pacific Titan from July to December, 2010. The charges referred to in these reasons arise from fishing voyages of the Pacific Titan during that period. [ 2 ] Mr. Steer entered guilty pleas to three counts of failing to maintain harvest logs (later consolidated by consent to one count). [ 3 ] On June 26, 2013, after a trial of the remaining counts, I convicted Mr.

Steer on: a. two counts of offering for sale fish which had not been caught and retained under the authority of a license which authorized their sale; b. two counts of failing to maintain the electronic monitoring system of the Pacific Titan in operational condition; c. three counts of landing groundfish (halibut and sablefish) without validation (i.e. without having them counted and weighed by a designated groundfish dockside observer).

I acquitted him on one count of offering for sale fish which had not been caught and retained under the authority of a license which authorized their sale and one count of fishing halibut during the closed season. My reasons for conviction (or acquittal) have been assigned the neutral citations 2013 BCPC 163 ; [2013] BCJ #1420. [ 4 ] I must now impose a sentence for each count to which Mr. Steer has entered a guilty plea and each count of which I found him to be guilty. [ 5 ] In broad outline, Mr. Steer’s delict arose from the following circumstances.

A successful commercial fishing venture requires a large capital investment in a boat, gear and license(s). Mr. Steer owned none of those capital assets, which were well beyond his means. However, he did have a reputation as a skilled and experienced fishing master. That reputation impelled the owners of the Pacific Titan to employ him as its master.

As is customary in the industry, the arrangement was that the owners would be reimbursed from the value of the catch (as “validated”) for variable expenses (fuel, food for the crew, bait, etc.), and would receive 40% of the value of the catch as a return on their investment in the boat, gear and licenses.

The balance would be divided between the master and the crew in shares determined by the master. “Validation” is the process by which landed fish are weighed and counted by designated groundfish observers, the results being reported by the observers to Fisheries & Oceans Canada (“DFO”) to be applied against the vessel’s fish quota. By landing fish surreptitiously under cover of darkness, Mr. Steer avoided validation, and so evaded his obligation to share the value of the catch with the vessel owners and crew.

Because the fish were not validated, they were not recorded against the quotas allocated to the Pacific Titan , enabling that vessel to catch more than its allocated quota for 2010. [ 6 ] Mr. Steer has two prior convictions (both by way of guilty plea) for violations of the fisheries regulations, one for fishing prawns during the closed season, and one for offering for sale fish not caught and retained under the authority of a license which authorized their sale. Both offences were committed in 2008. A fine of $400 was imposed on the first offence and a fine of $3500 was imposed on the second offence.

He has no other criminal record, although he has received several ticket violations and formal warnings from DFO in relation to other breaches of fisheries regulations. [ 7 ] The Crown has chosen to proceed by way of

summary conviction. Accordingly, the maximum penalty, on each count, is a fine of $100,000 and a term of imprisonment not exceeding one year. Fishing Quotas [ 8 ] Apart from small amounts of by-catch, the fish in question were halibut and sablefish. [ 9 ] Halibut fishing is regulated by the International Pacific Halibut Commission (the “IPHC”), established more than 70 years ago by a bilateral treaty between Canada and the United States of America.

The IPHC employs a staff of scientists who monitor the halibut population on the Pacific coast and advise the IPHC respecting sustainable harvest levels in each of the several distinct harvesting areas. The commissioners (three from each country) set a harvest quota for each area each year.

The quota for each area is divided among the vessels which hold halibut licenses for that area, in proportion to the nominal quota assigned to each license. [ 10 ] The value of halibut licenses varies with the price of the fish, and ranged from $3.64 to $5.17 per pound of annual quota during the period 2008 – 2011. [ 11 ] It is important that the IPHC be accurately informed of the number and weight of halibut harvested from each area in each year. That is primarily because the health of the halibut population will be critically affected if the total harvest exceeds the sustainable catch.

However, accurate data is also important because the IPHC conducts test fisheries in each area each year to monitor the population. If the numbers or size of fish caught in the test fishery differ from the expected figures, the scientists must try to determine the reasons for the variance. If the reason is unvalidated landings of halibut (like those committed by Mr. Steer), the scientists will have no way of knowing how much of the variance is attributable to illegal fishing and how much to natural causes.

That throws into doubt critical factors in their assessment of the sustainable catch. [ 12 ] Sustainable yield management is of obvious importance for environmental reasons. It is also critical to the financial success of

the industry. Each year, sustainability becomes a more significant issue driving consumer choices. The Pacific Halibut Management Association of British Columbia is an association of fishers who hold commercial halibut licenses. The association has made significant investments of time and money to obtain and maintain certification of the Pacific halibut fishery as a sustainable and environmentally responsible fishery from the Marine Stewardship Council, a recognized independent international body. Unauthorized fishing, like that conducted by Mr.

Steer, places that certification in jeopardy. [ 13 ] Halibut stocks are cyclical, and are presently at a low point in the cycle. The total allowable catch of halibut in British Columbia waters was 13.8 million pounds in 2004 and 7.04 million pounds in 2013. It is hoped that the population will recover, as it has in past cycles, but history teaches us that there is no certainty in relation to such matters. [ 14 ] Until recent years, sablefish (blackcod) were a less significant part of the commercial fishery than halibut. There is no international treaty or commission to regulate the blackcod fishery.

In recent years, it has become highly significant. Export sales alone now total approximately $25 million annually. The Canadian Sablefish Association contributes $1 million annually to scientific research and monitoring of the sablefish population, to which Fisheries & Oceans Canada (“DFO”) adds $750,000. The methods and objectives of the monitoring program are similar to those of the IPHC (without the participation of American authorities). The Scale of Mr. Steer’s Offence [ 15 ] It is not possible to estimate with any accuracy what weight or value of fish were landed by Mr. Steer without validation.

Indeed, one of his objectives in committing this crime was to conceal the weight and value of those fish. There is direct evidence of three occasions when Mr. Steer landed fish without validation. Mr. Spika, a member of the Pacific Titan’s crew, was present on each occasion, but his memory as to the amount of fish landed without validation was imprecise. Mr. Newhook, another crew member, was not present on any of the three occasions, but gave an estimate of the quantity of fish based on his observations before and after each unvalidated offload. I conclude that, on each of the three occasions described by Mr.

Spika, several hundred fish, including sablefish, halibut and rockfish, were landed without validation, and that the total weight of those fish was in the thousands of pounds. It is clear that the three occasions described by Mr. Spika were not the only occasions when Mr. Steer committed this crime. We know that because Mr. Steer covertly offered for sale hundreds of pounds of whole sablefish and halibut fillets in late September and early October, 2010, before Mr. Spika joined the crew of the Pacific Titan. [ 16 ] Another indication of the scale of Mr.

Steer’s offence is that the validated fish landed by the Pacific Titan , on each of her voyages under Mr. Steer’s command, were of insufficient value to pay the variable expenses of the voyage. This was described by the vessel owners as extraordinary, particularly by reference to the catches of other similar vessels in the same fishery during the same time period. As a result, the vessel owners were out of pocket for the shortfall and received no return on their capital investments, and the crew were paid nothing for their labour. Crew members might expect to earn approximately $5000 per month on similar voyages.

It is clear that Mr. Steer defrauded the vessel owners and crew members of an aggregate sum in excess of $50,000. Mr. Steer [ 17 ] Mr. Steer is 36 years of age. He comes from a family of commercial fishers, and has been a commercial fisherman since he was 16. He has never done any other kind of work. [ 18 ] Mr. Steer is the father of two young children, one of whom suffers from a learning disability which makes it difficult for him to attend regular school classes. As a result, his parents incur significant extra expenses for his education. Mr. and Ms. Steer are separated.

She describes him as a loving and attentive father and a generous provider whose financial support is necessary for the well- being of their children. [ 19 ] DFO made enquiries in an attempt to ascertain Mr. Steer’s financial circumstances, which are relevant to his ability to pay a substantial fine. The results of those enquiries indicate that Mr. Steer’s liabilities exceed $500,000 and that the value of his assets is less than $100,000. He carries on his fishing activities through a corporation. It appears that the corporation earns about $75,000 annually from legitimate fishing activities.

As noted, there is no way to estimate Mr. Steer’s annual profits from illegal fishing. Mr. Steer does not challenge DFO’s assessment of his financial position, and did not provide any detailed financial information of his own. Mr. Fane says that Mr. Steer will be able to pay $1000 per month on account of any fines which I may impose, if and only if he is permitted to continue to work as a commercial fisher. Principles and Objectives of Sentencing in Fisheries Cases [ 20 ] I am directed by sections 718 – 718.2 of the Criminal Code to consider the following matters: a. denunciation of Mr.

Steer’s conduct; b. deterrence of Mr. Steer and others from future similar conduct; c. separation of Mr. Steer from society, if necessary; d. Mr. Steer’s rehabilitation; e. reparation to victims of Mr. Steer’s crimes; f. promotion on the part of Mr. Steer of a sense of responsibility and an acknowledgement of the harm which he has done to others; g. the sentence must be proportionate to the gravity of the offence and the degree of responsibility on the part of Mr. Steer; h. whether, in committing the offence, Mr. Steer abused a position of trust or authority in relation to one or more victims of the offence;

i. the “… sentence should be similar to sentences imposed on similar offenders, for similar offences committed in similarcircumstances …”; j. a sentence of imprisonment must not be imposed if a non-custodial sentence could be “… appropriate in the circumstances …”. k. all appropriate alternatives to a custodial sentence must be considered. [21] The weight to be given to each of those matters will differ in each case.

It has been said that the “… paramount principle ofsentencing in a regulatory context such as the Fisheries Act is deterrence, both specific and general …”: R vs Ivy Fisheries Ltd 2006NSPC 26 @ paragraph 15. I refer also to R vs Reid 2001 BCSC 1307 @ paragraph 12 and to R vs Castro 2010 ONCA 718 @ paragraph30. I differ with that proposition only because I think that it requires some explanation. In my view, the primary sentencing objective infisheries cases is the protection of the fishery. Deterrence (general and specific) is an important and useful tool in pursuit of thatobjective.

For that reason, it should be given greater weight than some of the other sentencing objectives and principles identified by theCriminal Code. I acknowledge that it would be an error in principle to focus solely on deterrence to the exclusion of the other factorswhich the Criminal Code requires me to consider: R vs Weaver [2002] NBJ #140 @ paragraphs 22, 23, 34. [22] The tools commonly available to effect denunciation and deterrence (specific and general) in criminal cases are fines andsentences of imprisonment.

In the case of fisheries offences, the court is offered the additional tool of a fishing prohibition undersections 79.1 and 79.2 of the Fisheries Act. Such a prohibition directly serves the primary imperative of protecting the fishery, bypreventing the offender from fishing for the term of the prohibition. It also serves to denounce the crime and as a specific and generaldeterrent. Because it minimally infringes the liberty of the offender, it is an alternative to imprisonment which the Criminal Coderequires the court to consider. A Sentencing Dilemma [23] Ms.

Ball seeks a fine of the order of $250,000, a 10-month jail sentence and a 10-year fishing prohibition under sections 79.1and 79.2 of the Fisheries Act. [24] Section 734(2) of the Criminal Code provides that I may impose a fine only if I am satisfied that Mr. Steer is able to pay it. [25] Despite the limited information which I have been provided about Mr. Steer’s financial capacity, I think it clear that his abilityto pay a substantial fine depends upon whether I impose a fishing prohibition under sections 79.1 and 79.2 of the Fisheries Act, and uponthe terms of any such prohibition. Mr.

Steer is a skilled, albeit dishonest, fisherman, and has no other work skills or experience. If Iimpose a lengthy fishing prohibition, only two employment opportunities will remain open to him. He could work, as he has done in thepast, as a broker of fish and fishing quotas. I have no basis upon which I could assess his income-earning capacity as a broker. He couldalso work as a labourer. My experience as a family court judge on Vancouver Island informs me that labouring jobs on VancouverIsland are scarce and poorly paid. If Mr.

Steer chooses to become a labourer on Vancouver Island, he will probably earn less than$30,000 per year. Better wages for labourers are available in other parts of Canada, but pursuit of those opportunities would require himto move away from his children. [26]

Section 718.2 of the Criminal Code: (

i) provides that a sentence of imprisonment should not be imposed if less restrictivesanctions could adequately serve the objectives of sentencing (as defined by the statute); and (ii) requires me to consider all reasonablealternatives to imprisonment. A substantial fine may be a suitable alternative to imprisonment in relation to some fisheries offences. Mr.Steer’s ability to pay a substantial fine depends upon whether I impose a fishing prohibition, and, if so, on what terms. For that reason, Iaddress first the question of a fishing prohibition. Fishing Prohibition [27] In my view, Mr.

Steer represents a threat to the health of the fishery, and should be prohibited from participating in it for anextended period of time. [28] Before they hired Mr. Steer, the owners of the Pacific Titan had heard of Mr. Steer as a skilled fishing master with a reputationfor flouting “the rules” (i.e. the fishing regulations). For that reason, during his employment interview, they impressed upon Mr. Steerthe importance of obeying “the rules” when fishing in their employ. Mr.

Steer laughed at them, and replied that there were “two sets ofrules”, but eventually agreed that he would obey “the rules” as master of the Pacific Titan. His expressed agreement to that constraintwas a bald deceit. Beginning with his first voyage as master of the Pacific Titan, and throughout his command of the vessel, Mr. Steerdeliberately infringed “the rules” in pursuit of his scheme to defraud the vessel owners and crew. [29] Mr. Steer’s conduct in relation to Mr. Spika is particularly shocking. Mr. Spika is a young man who came to Canada from hisnative Germany early in 2010.

His first job in Canada was as a member of the Pacific Titan’s crew. Because he was an inexperiencedfisher, he received the smallest share of the catch. Because the crew shares are determined by reference only to validated landings, andbecause Mr. Steer landed a large part of the catch without validation, Mr. Spika was cheated of his wages. He worked hard for threemonths for nothing but food and lodging (on-board). To cheat the vessel owners was criminal. To cheat the experienced crew memberswas unforgiveable.

To cheat a young man trying to make his way alone in a new country without the support of friends or family wasmuch worse than unforgiveable. It was

an act of moral bankruptcy. [30] During his submissions on Mr. Steer’s behalf, Mr. Fane described several of Mr. Steer’s breaches of the fisheries regulations astechnical or minor. I am entitled to infer, and do infer, that those submissions were made on Mr. Steer’s instructions and reflect Mr.Steer’s attitude in relation to those breaches: Pielak vs Crown Forest Industries Ltd. (BC SC), [1992] 3 WWR 592; 64BCLR (2d) 207. Four such submissions are of particular concern. a. Mr. Fane said that Mr.

Steer’s omission to complete harvest logs on the two initial voyages of the Pacific Titan under hiscommand were minor technical breaches because Mr. Steer was in possession of all of the necessary information, and had intended tocomplete the harvest logs but never got around to it. I do not accept that submission. The evidence discloses that Mr. Steer was

instructed by the vessel owners to fish for tuna on those two voyages, but that he caught very little tuna, not enough to pay the expenses of the voyages, because he was surreptitiously fishing for groundfish and landing the groundfish without validation for private sale. Plainly, he didn’t complete the harvest logs because he didn’t want anyone to know what he was doing. b. Mr. Fane said that Mr.

Steer’s omission to maintain the electronic monitoring system in functional mode throughout the Pacific Titan’s groundfish voyages was an innocent mistake, prompted by an error in interpreting the regulations to determine when the fishing trips began and ended. I do not accept that submission . Mr. Spika described one day when the Pacific Titan fished for halibut, and caught a very large quantity of that fish. Mr. Spika described the deck as covered in halibut, and said that the day of processing and freezing the halibut was the longest day of his life. Mr.

Newhook, another crew member, said that they caught about 150 halibut on that day. If the electronic monitoring system had been operating on that day, it would have provided video footage of the fish as they came on board and were processed, and also records of the lines going in and out. That data would have enabled one to make a good estimate of the quantities of halibut landed that day. That is the purpose of the electronic monitoring system. Most or all of those halibut were subsequently landed under cover of darkness without validation. It is manifest that Mr.

Steer turned off the electronic monitoring system to conceal the evidence of his illegal fishing activities. c. Mr. Fane characterized Mr. Steer’s offers to sell fish landed without validation as the sale of a few fish to friends, an activity (he said) which ought to be distinguished from a commercial operation. That characterization cannot be reconciled with Mr. Steer’s text messages to two of his correspondents, in which he offered them commissions if they could arrange sales of fish to others. d. Mr. Fane told me that most of the fish landed without validation were destined for consumption by First Nations.

That may or may not be so. There is no evidence to support the assertion, and the evidence of Mr. Steer’s attempts to sell unvalidated fish to ordinary citizens causes me to doubt it. However, let us assume it to be true for present purposes. Respecting, as I do, the constitutional rights of First Nations, it is clear that the process of reconciliation called for by the jurisprudence demands open and fair dealing on both sides.

Nothing could be more harmful to the prospects for reconciliation in respect of the fishery than the landing of fish under cover of darkness and their distribution to First Nations without regulatory supervision. In addition to the risk posed to the evolving relationship between First Nations and other fishers, such activities place in jeopardy the effective sustainable management of the resource, which is of equal importance to First Nations and to other fishers. Shortly put, Mr. Steer is a dishonest man, with no respect for the rights of others and no regard for the sustainability of the fishery.

It follows that he should be prohibited, for some period of time, from participation in the fishery. [ 31 ]

Section 79.1 of the Fisheries Act authorizes me to cancel any existing fishing licenses or permits held by Mr. Steer and to prohibit him from applying for any new permits or licenses “… during any period the court considers appropriate …”. Ms.

Ball urges me to cancel his existing license and to prohibit him from applying for any new license for a period of 10 years. [ 32 ] I agree that it is appropriate to cancel his existing licenses and permits, and I make that order. [ 33 ] In relation to a prohibition on future licenses, I have considered whether a shorter prohibition would adequately serve the statutory purpose. In so doing, I have considered the statutory objective of Mr. Steer’s rehabilitation. [ 34 ] If I were confident that I could impose a sentence which would impel Mr.

Steer to obey the fisheries regulations in future, I would incline to a fishing prohibition much shorter than that proposed by Ms. Ball. Mr. Steer’s skills and experience would enable him to make a valuable contribution to society if he could be trusted to fish in compliance with the applicable regulations. A prohibition of a year or two would allow him to preserve those skills and to resume his financial contributions to the well-being of his family without too much disruption. The problem is that, in my judgment, Mr. Steer cannot be trusted to comply with the fisheries regulations in future.

There is nothing in the evidence to lead me to think that he has today any more respect for conservation imperatives or for the rights of others than he had in the past. Rather than take responsibility for his actions, he has sought to evade that responsibility by tendering excuses and explanations which are manifestly false. I note in addition that he has offered $500 in restitution to Mr. Spika (of the order of 3% of the wages of which Mr. Steer defrauded him), and nothing by way of restitution to the vessel owners or other crew members.

It is apparent that he is a man without a conscience. [ 35 ] In the result, I impose a 10-year prohibition against the issuance of any new fisheries licenses or permits to Mr. Steer. [ 36 ]

Section 79.2 of the Fisheries Act empowers me to impose any other terms which may be appropriate to prohibit Mr. Steer from “… engaging in any activity that may … result in the … repetition of the offence …”. I think it appropriate to order that, for a term of 10 years beginning today, Mr. Steer is not to: a. be found on board any vessel which is licensed to engage in any commercial or aboriginal fishery in Canadian or American waters. b. possess or acquire any interest, legal or equitable, absolute or contingent, in any such vessel or license; c. own or possess any fishing gear of any kind.

Fine [ 37 ] One might think that a very substantial fine would be a sufficient deterrent in cases of this kind. If so, a fine would be an appropriate alternative to a custodial sentence, and a custodial sentence should not be imposed. [ 38 ] As noted in paragraph 24, I may not impose a fine unless I am satisfied that Mr. Steer has the financial capacity to pay it. [ 39 ] The evidence of Mr. Steer’s financial capacity is limited and uncertain. I intend by that no criticism of Ms. Ball or of the fisheries officers who are assisting her. Clearly, the relevant information is in the possession of Mr.

Steer, but he chose to lead no evidence on the subject. Doing the best I can with the information I have been given, and taking into account both his financial obligations to his family and the fishing prohibition which I have imposed, I think that a fine in excess of $1000 is likely to exceed his

capacity to pay. [ 40 ] A fine of less than $100,000 would be entirely inadequate to satisfy the statutory objectives of denunciation and deterrence. The profits which Mr. Steer earned from illegal fishing activities as master of the Pacific Titan cannot be estimated with any precision. Indeed, Mr. Steer’s purpose in committing these offences was to render it impossible for anyone to accurately estimate the size of his illegal catch. However, it is clear from the evidence of Mr. Spika, Mr. Newhook and Mr. Peterson that it included hundreds of fish, weighing thousands of pounds, worth tens of thousands of dollars.

To be an effective deterrent, a fine must exceed, by a substantial margin, the profits which were earned from the illegal fishing. A fine of the order of 10% of the value of the illegal catch would be manifestly insufficient to deter other fishers from similar crimes. Imprisonment [ 41 ] I have considered the principle that offenders should not be jailed because they are poor. It is an important principle. It might be that a wealthy person who committed Mr. Steer’s crimes would be sentenced to a very substantial fine and not to imprisonment. However, I do not think that I should excuse Mr.

Steer from a custodial sentence for that reason. If I did, the result would be that poor people could devastate the fishery, and defraud vessel owners and crews, and face only the penalty of a fishing prohibition under sections 79.1 and 79.2. I do not think that such a fishing prohibition, standing alone, would serve as a sufficient deterrent to such conduct. [ 42 ] In considering whether to impose a sentence of imprisonment, and the length of any such sentence, I must consider whether it is necessary to separate Mr.

Steer from society, the prospects for his rehabilitation, the objective of promoting a sense of responsibility on his part, the gravity of his offence (particularly whether it involved a breach of trust or abuse of a position of authority over others) and sentences imposed in other, similar cases. [ 43 ] Mr. Steer is not a danger to society. If permitted to fish, he would be a danger to the fish, but that risk can be managed by the fishing prohibition which I have imposed. [ 44 ] I do not think that any sentence which I might impose will have much effect on Mr.

Steer’s rehabilitation, or will instil in him any sense of responsibility for his crimes. I say that because: a. his conduct in relation to his crew, and particularly in relation to Mr. Spika, displayed such a shocking lack of conscience and human decency that I doubt that he has any insight into his own behaviour; b. the submissions made on his behalf at the sentencing hearing clearly disclaimed any sense of responsibility. [ 45 ] I consider Mr. Steer’s crimes to be grave ones for which he is solely responsible.

I observe that, unlike most criminals I see, he was not driven by poverty, mental illness or addiction. His crimes were calculated and planned to profit him at the expense of others. [ 46 ] Mr. Steer was in a position of trust in relation to his employers and in a position of authority in relation to his crew. [ 47 ] If he had been charged with defrauding his employers, I would certainly have convicted him on the evidence before me.

The sentence for such a fraud would normally include a jail term of 2 years or more: R vs Datsko 2009 BCPC 106 , although a conditional sentence of less than 2 years might be ordered in some cases: R vs M.K.M. 2007 BCPC 58 . [ 48 ] More significant, in my view, is the fraud upon his crew. I asked Mr. Newhook why he did not take steps against Mr. Steer when Mr. Newhook discovered the fraud. He replied that crews of fish boats are selected, and the crew members’ shares determined, by the masters. He was afraid that, if he reported Mr. Steer’s fraud, he would be blacklisted in the industry.

Jobs are scarce on Vancouver Island, and few of them pay as well as commercial fishing. Mr. Newhook had every reason to fear for his livelihood. The industry practice was clearly a contributing factor in this case. By conferring on Mr. Steer the power to select the crew and determine their shares of the catch, the vessel owners made it possible for Mr. Steer to extort silence from the crew, and so delay the discovery of his fraud. [ 49 ] I have been provided with victim impact statements from representatives of the fishing industry, deploring Mr.

Steer’s conduct and requesting that I impose a serious penalty on him. I am fully satisfied of the sincerity of those statements and the importance of the issues discussed in them. For the reasons put forward in those statements, the industry, in its own interest, should act to encourage whistle-blowers. One concrete step which the industry could take would be to deprive fishing masters of their power to select, and determine the shares of, the crew members. I observe that, to their credit, the owners of the Pacific Titan continue to employ Mr. Spika and Mr. Newhook, who are said to be exemplary employees.

However, the continuing industry practice leaves open the probability that other employees on other vessels will be similarly intimidated in future. [ 50 ] Counsel referred me to a number of previous judgments, imposing sentences for illegal fishing. In each of them, the quantity of fish illegally caught could be estimated with some precision. That is not so in this case. Indeed, Mr. Steer’s objective was to render it impossible for anyone to estimate the quantity of fish caught by the Pacific Titan.

For that reason, it is not possible to make an informed comparison to the circumstances considered in the authorities to which counsel referred me. [ 51 ] I am of the view that a conditional sentence order would fail, by a considerable margin, to give effect to the statutory objectives of denunciation and deterrence. For that reason, I consider that a custodial sentence is necessary. Taking into account the denunciatory and deterrent value of the fishing prohibition which I have imposed, the restitution order which I am about to make, and Mr.

Steer’s family obligations, I fix that sentence at 6 months’ imprisonment. [ 52 ] Each of the eight counts for which Mr. Steer is to be sentenced was a part of a single criminal enterprise. None of them is more worthy of condemnation than another because they were all directed to the same object. For that reason, it is appropriate to impose a sentence of 6 months on each count, all eight sentences to be served concurrently. Restitution

[53]

Section 738 of the Criminal Code authorizes me to order Mr. Steer to pay restitution to any victim of his crimes whose propertyhas been lost or damaged by those crimes where the amount of compensation which ought to be paid “… is readily ascertainable …”. While the ability of the offender to pay is a factor to consider in making a restitution order, ability to pay restitution (unlike a fine) is nota condition precedent to making an order.

No doubt, that is because a breach of a restitution order does not automatically orpresumptively result in imprisonment. [54] I conclude that a restitution order may be made in this case because: a. The fish landed by Mr. Steer were the property of the owners of the Pacific Titan, and were lost to them when abstracted by Mr.Steer. b. The crew shares are choses in action, analogous to wages, and so are “property”: Clarke vs Clarke (SCC), [1990] 2SCR 795 @ paragraph 54. They were lost to them by reason of Mr. Steer’s crimes. c.

The Oxford English Dictionary defines “ascertainable” as “… capable of being fixed, settled or decided …”. If Mr. Spika brought anaction against Mr. Steer in Small Claims Court, as he is entitled to do, and if the evidence which I have heard were tendered in the smallclaims action, it would be the duty of the presiding judge to make the best estimate possible (on the evidence) of the value of the fishlanded without validation, and to give judgment accordingly: Scarff vs Wilson (1988) (BC CA), 33 BCLR (2d) 290; 55 DLR (4th) 247, citing Chaplin vs Hicks [1911] 2 KB 786.

In so doing, the presiding judge would “fix, settle or determine” the amountof compensation payable. d. The annotations to the current edition of Martin’s Criminal Code cite R vs Siemens (1999) (MB CA), 136 CCC(3d) 353 as authority for the proposition that no restitution order should be made “… where it is difficult to determine the amount of theloss or difficult to apportion restitution among multiple victims …”. I find no such statement in Siemens, and do not consider the case tobe authority for the proposition. In that case, Justice Huband approved the following observations from previous authorities: i.

Difficulties in determining the amount of the victim’s loss will militate against a restitution order since it would be unwise fora criminal court to become involved in the determination of damages. ii. … an order ought not to be made ... if it requires the court to make extensive inquiries and examine witnesses and evidencegenerally in an attempt to reach a conclusion. I construe those observations to be an admonition to refrain from protracted factual enquiries which are collateral to the issues in thecriminal trial.

Where a restitution order could not be made without such enquiries, a restitution order should not be made, and the issueof restitution should be left for determination by a civil process. I do not construe Siemens to go farther than that. e. In this case, a restitution order in favour of Mr. Spika would require me only to consider the evidence which I have already heard andto apply to it the process of assessment which I would apply in a small claims action. It would not significantly expand the scope of theenquiry required of me in any event. f.

A restitution order is not a bar to a subsequent civil action by one or more victims, and does not limit the amount which the victimsmight recover in such an action: Criminal Code,

section 741.2. As was held in Siemens, I may order partial or full restitution, and neednot order restitution in favour of all victims. For those reasons, I need not be concerned that I might adversely affect the claim of thevictim by making a restitution order without affording him the opportunity to be heard. [55] I must bear in mind that a restitution order is part of the punishment for the offence, and so must be proportionate, havingregard to the principle of totality in sentencing. [56] In this case, I would not make a restitution order in favour of the owners of the Pacific Titan.

They are sophisticated businesspeople, who are well able to assert their rights in a civil action in an appropriate court. I would not make a restitution order in favour ofthe other crew members of the Pacific Titan. Mr. Steer alleges that one or more of them were willing participants in Mr. Steer’s illicitactivities. It would clearly be improper for me to say more on that subject. They are free to pursue their civil remedies if so advised. [57] I do think it appropriate to make a restitution order in favour of Mr. Spika. He gave evidence.

It was not suggested to him thathe was anything other than an innocent victim of Mr. Steer’s fraud. The amount of compensation which should be awarded is difficult toassess, but only because, by evading validation of the catch, Mr. Steer deliberately created a situation in which it could not be accuratelymeasured. Mr. Heras, one of the owners of the Pacific Titan, said that, in normal circumstances, the earnings of crew members variedwidely, depending on the success of each fishing voyage, but that an average of about $5000 per month could reasonably be expected. Mr.

Spika served aboard the Pacific Titan for the months of October, November and December, 2010 and earned nothing because of Mr.Steer’s fraud. Having regard to the principles stated in Siemens, to the fact that Mr. Spika will have the right to pursue a civil claim foradditional compensation if he is so inclined, and to the principles of proportionality and totality in sentencing, I think that a restitutionorder in the amount of $15,000 in favour of Mr. Spika is appropriate, and I make that order. Forfeiture [58] Ms. Ball seeks an order for forfeiture of a list of items found in Mr. Steer’s possession, pursuant to

section 490.1 of the CriminalCode. I am empowered to make that order only if I am satisfied on a balance of probabilities that the items in question were used inconnection with the commission of an offence. I am so satisfied only in relation to the i-Phone discussed at length in my previousjudgment in this case, and the fish seized from purchasers in Dawson Creek. I make a forfeiture order in relation to those items only. November 26, 2013

_________________________________ T. Gouge, PCJ