R. v. Johnnie et al Date:, 2016 BCPC 96

Citation: R. v. Johnnie et al Date: 20160330 2016 BCPC 0096 File No: 76003-1, 76010-1, 77712-1, 77713-1, 77738-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. File 76003-1 REGINA v. CHARLES CURTIS JOHNNIE, DEAN THOMAS MANSON, HERBERT ADAM TAYLOR File 76010-1 REGINA v. CHARLES CURTIS JOHNNIE, DARRIN EDWARD MANSON, DERRICK EARL MANSON, HERBERT ADAM TAYLOR File 77712-1 REGINA v. JEREMY TRENT HARRIS, DEAN THOMAS MANSON, ISAAC HAYES MANSON, WILLIAM JOHN PATRICK WYSE File 77713-1 REGINA v. DERRICK EARL MANSON, NORMAN JAMES MILBURN

File 77738-1 REGINA v. DEAN BRADLEY CANUTE, JEREMY HARRIS, DEAN THOMAS MANSON, ISAAC HAYES MANSON, GARY MANSON REASONS FOR SENTENCE RE HERBERT TAYLOR, CHARLES JOHNNIE, DERRICK MANSON, DEAN MANSON AND JEREMY HARRIS OF THE HONOURABLE JUDGE J. P. MacCARTHY Federal Counsel for the Crown: S. Simpson Counsel for the Accused Johnnie and Harris: V. Svacek Counsel for Accused Dean Manson : P. Gibb Counsel for Accused Taylor P. Hertzberg Counsel for Accused Derrick Manson C. Wright Place of Hearing: Nanaimo , B.C.

Dates of Hearing: August 27th, 2015, October 27th, 2015, and January 29th, 2016 Date of Judgment: March 30, 2016 Introduction [ 1 ] THE COURT (orally): Five offenders of First Native heritage, and all members of the Snuneymuxw First Nation, are before the court having entered guilty pleas to a number of charges being offences under s. 78(

a) of the Fisheries Act (the "Act"). [ 2 ] The charges are set out on five separate Informations, all upon which Crown has proceeded summarily. [ 3 ] The offences can generally be described as the harvesting of clams which were fished in an area closed by order pursuant to s. 3(1), other than under the authority of an issued licence, or in a prohibited area contrary to s. 3(2), both being sections of the Management of Contaminated Fisheries Regulations (the "Regulations") and for the possession of clams that were caught contrary to s. 33 of the Act. [ 4 ] The closed area is south of the City of Nanaimo, British Columbia, at Cedar and is specifically at a location known as Boat Harbour. [ 5 ] The prohibited area is an area that forms part of the foreshore of Nanaimo Harbour located adjacent to the City of Nanaimo.

[6] Both areas fall within the traditional lands and traditional clam-harvesting areas of the Snuneymuxw First Nation. Both areasare heavily contaminated and mollusc harvesting in these areas has been a matter of significant concern for the Department of Fisheriesand Oceans ("DFO") for some time. I understand that a number of members of the Snuneymuxw First Nation have in recent times usedthese areas to harvest clams which are part of their traditional diet. I understand that following harvesting, these clams have beenconsumed by a number of the members of the Snuneymuxw First Nation.

Accordingly, DFO officers have been active in these areasattempting to prevent the harvesting from occurring. A number of Fisheries charges have been laid in recent times as a result of thisharvesting activity. [7] This particular case has had a somewhat torturous history before the courts.

Some of the charges before the court date back tooffence dates of December 14, 2011, February 5th, 2012, April 13, 2013, May 14, 2013, and March 23rd, 2014. [8] These matters came before this court for the commencement of the sentencing process on February 2nd, 2015, pleas of guiltyhaving been entered by each of the five accused, with the assistance of legal counsel, several months prior to that date.

The sentencingprocess was already underway on February 2nd, 2015, when defence counsel discovered uncompleted blanks in the jurats as to the datesand places of the purported swearing of two of the Informations, namely, 76010 (herein referred to as “Information Number 1”) and76003-1 (herein referred to as “Information Number 2”). Immediately thereafter, the focus of the sentencing hearing shifted and anapplication was made by defence for leave to quash these Informations and arguments and submissions were presented to the court.

Byway of oral reasons rendered on April 9th, 2015, the application was dismissed (see R. v. Johnnie, [2015] B.C.J.

No. 868; 2015 BCPC105 ). [9] Dates for the continuation of the sentencing hearing were obtained and matters proceeded on August 27th, 2015, October 27th,2015, and January 29th, 2016. [10] In order to accommodate a number of counsel’s competing professional schedules and the court rota, this matter has beenscheduled for today in order to render my reasons on the sentencing. [11] The issue before the court is the determination of a fit and appropriate sentence for each of these offenders. [12] In submissions, the offenders seek conditional discharges and the Crown seeks in some cases custodial sentences.

Legislative Framework for Offences Under the Fisheries Act and Regulations Statutory Provisions for Offences and Defence of Due Diligence Under the Fisheries Act [13] Under the heading of "Offence and Punishment," the following sections of the Fisheries Act are applicable to this case: Unlawful sale or possession 33 No person shall purchase, sell or possess any fish that has been caught in contravention of this Act or the regulations. ... Offence and Punishment Punishment not otherwise provided for 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 thousanddollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term notexceeding 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 subsequentoffence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. Continuing offences 78.1 Where any contravention of this Act or the regulations is committed or continued on more than one day, it constitutes a separateoffence for each day on which the contravention is committed or continued.

Offences by corporate officers, etc. 78.2 Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized,assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable onconviction to the punishment provided for the offence, whether or not the corporation has been prosecuted.

Offences by employers 78.3 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by anemployee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless theaccused establishes that the offence was committed without the knowledge or consent of the accused.

Offences by licence holders 78.4 In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a personin respect of any matter relating to any operations under a lease or licence issued to the accused pursuant to this Act or the regulations,whether or not the person is identified or has been prosecuted for the offence, unless the accused establishes that the offence was

committed without the knowledge or consent of the accused. Burden of proving licence 78.5 In any prosecution for an offence under this Act, where a question arises as to whether a person was issued a licence, the burden is on the person to establish that the licence was issued. Due diligence defence 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. Additional fine 79 Where a person is convicted of an offence under this Act and the court is satisfied that as a result of committing the offence the person acquired monetary benefits or monetary benefits accrued to the person, the court may, notwithstanding the maximum amount of any fine that may otherwise be imposed under this Act, order the person to pay an additional fine in an amount equal to the court's finding of the amount of those monetary benefits.

Lease or licence cancelled, etc. 79.1 Where a person is convicted of an offence under this Act in respect of any matter relating to any operations under a lease or licence issued pursuant to this Act or the regulations, in addition to any punishment imposed, the court may, by order, (

a) cancel the lease or licence or suspend it for any period the court considers appropriate; and (

b) prohibit the person to whom the lease or licence was issued from applying for any new lease or licence under this Act during any period the court considers appropriate. Orders of court 79.2 Where a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing any one or more of the following prohibitions, directions or requirements: (

a) prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence; (

b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to any fish, fishery or fish habitat that resulted or may result from the commission of the offence; (

c) directing the person to publish, in any manner the court considers appropriate, the facts relating to the commission of the offence; (

d) directing the person to pay the Minister an amount of money as compensation, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the commission of the offence; (

e) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order; (

f) directing the person to pay Her Majesty an amount of money the court considers appropriate for the purpose of promoting the proper management and control of fisheries or fish habitat or the conservation and protection of fish or fish habitat; (

g) directing the person to post a bond or pay into court an amount of money the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section; (

h) directing the person to submit to the Minister, on application by the Minister within three years after the date of the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances; and (

i) requiring the person to comply with any other conditions that the court considers appropriate for securing the person's good conduct and for preventing the person from repeating the offence or committing other offences under this Act. Suspended sentence 79.3(1)Where a person is convicted of an offence under this Act and the court suspends the passing of sentence pursuant to paragraph 731(1) (

a) of the Criminal Code , the court may, in addition to any probation order made under that paragraph, make an order directing the person to comply with any prohibition, direction or requirement mentioned in

section 79.2. Imposition of sentence

(2) Where a person whose sentence has been suspended fails to comply with an order made under subsection (1) or is convicted, within three years after the day on which the order was made, of another offence under this Act, the court may, on the application of the

Attorney General, impose any sentence that could have been imposed if the passing of sentence had not been suspended. Debt due to Her Majesty 79.4(1)Where the court makes an order under

section 79.2 or 79.3 directing a person to pay an amount of money as compensation or for any other purpose, the amount and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction. Publication

(2) Where a person fails to comply with an order made under

section 79.2 or 79.3 directing the person to publish the facts relating to the commission of an offence, the Minister may publish those facts and recover the costs of publication from the person. Idem

(3) Where the Minister incurs publication costs under subsection (2), the amount of the costs and any interest payable on that amount constitute a debt due to Her Majesty and may be recovered as such in any court of competent jurisdiction. Variation of orders 79.5(1)A court that has made an order under

section 79.2 or 79.3 may, on application by the Attorney General or the person to whom the order applies, require the person to appear before it and, after hearing the person and the Attorney General, vary the order in any of the following ways that the court considers appropriate because of a change in the circumstances of the person since the order was made: (

a) change the order or any prohibition, direction or requirement mentioned in the order; (

b) relieve the person, either absolutely or partially and for any period that the court considers appropriate, of compliance with any prohibition, direction or requirement mentioned in the order; or (

c) extend or decrease the period during which the order shall remain in force. Limitation

(2) Where an application has been heard by a court under subsection (1), no other application may be made in respect of the same order except with leave of the court. Offence and punishment 79.6 Every person convicted of an offence under this Act who subsequently contravenes an order made under

section 79.2 or 79.3 is guilty of (

a) an offence punishable on

summary conviction and liable to a punishment not exceeding the maximum punishment to which a person is liable on

summary conviction for the original offence; or (

b) an indictable offence and liable to a punishment not exceeding the maximum punishment to which a person is liable on conviction on indictment for the original offence. ... Limitation of Suits Limitation period 82 A proceeding by way of

summary conviction in respect of an offence under this Act may not be commenced later than five years after the day on which the offence was committed. [ 14 ] I note that the provision previously read as follows: Limitation period 82(1) Proceedings by way of

summary conviction in respect of an offence under this Act may be instituted at any time within but not later than two years after the time when the Minister became aware of the subject matter of the proceedings. Minister's Certificate

(2) A document purported to have been issued by the Minister certifying the day on which the Minister became aware of the subject matter of any proceedings is admissible in evidence without proof of the signature or of the official character of the person appearing to have signed the document and in the absence of any evidence to the contrary is proof of the matter asserted in it. [ 15 ] That provision was amended in 2012. [ 16 ] Continuing with the Statutory Provisions under the heading, "Applications and Penalties" it provides: Applications of Penalties and Forfeitures Penalties and forfeitures 85 The Governor in Council may prescribe the manner in which the proceeds of penalties and the proceeds of the sale of confiscated

things shall be distributed. Appeal in proceedings by indictment 86(1) For the purpose of

Part XXI of the Criminal Code, any order and any decision not to make an order under subsection 71.1(1),subsection 72(1), (2) or (3) or

section 79, 79.1, 79.2 or 79.3 as well as any sentence passed by the court under this Act shall beconsidered a sentence within the meaning of

section 673 of the Criminal Code. Appeal in

summary conviction proceedings

(2) For the purpose of

Part XXVII of the Criminal Code, any order and any decision not to make an order under subsection 71.1(1),subsection 72(1), (2) or (3) or

section 79, 79.1, 79.2 or 79.3 as well as any sentence passed by the court under this Act shall beconsidered a sentence within the meaning of

section 785 of the Criminal Code. [17] The offences under the Fisheries Act are strict liability offences. The charge is made out simply by proving the actus reuswhich is then subject only to the limited statutory defences provided in the Act. It is not necessary for Crown to prove the mentalelement or intent to commit the offence. [18] Our Court of Appeal in R. v. F.A.S. Seafood Producers Ltd. , 2000 B.C.J. No. 1625; 2000 BCCA 464, noted the followingabout the due diligence offence.

Commencing at paragraph 24, the court said as follows: [24] The clause "unless the accused establishes that the offence was committed without the knowledge or consent of the accused"imports the reasonable care or "due diligence" defence to the liability of a principal for its agent. [25] It is helpful to refer to R. v. Cameron (1996), (NS SC), 149 N.S.R. (2d) 196 (S.C.), leave to appeal dismissed[1996] N.S.J. No. 109 (C.A.) (Q.L.), in which the application of s. 78.3 of the Act was considered in an appeal from conviction forlanding undersized lobsters. In that case, the accused fished for lobsters with a helper.

He delegated to his helper responsibility formeasuring the size of the lobsters caught. The accused said he had no knowledge, and there was no reason for him to have knowledge,that any of the lobster were undersized. One of the issues was whether the trial judge erred in finding that Cameron had not establishedthe defence of due diligence. On that issue, Tidman J. said, in part, at paras. 10-12: [10] Here the court found that the lobsters landed from the boat of the accused were smaller than legally permissible. That finding isnot in dispute.

The accused is entitled to an acquittal, however, if he can establish on a balance of probabilities that the offence wascommitted without his knowledge or consent. This provision incorporates what is known as the reasonable care or "due diligence"defence. [11] That defence was considered by the Supreme Court of Canada in the seminal case of R. v. City of Sault Ste. Marie (1978), (SCC), 85 D.L.R. (3d) 161. The court describes what are known as strict liability offences and the defences available againstthem.

At p. 81 the court defines strict liability offences and states what must be shown to successfully defend such a charge. Offences in which there is no necessity for the prosecution to prove the existences of mens rea; the doing of the prohibited act primafacie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. [12] The defence, commonly described as the "due diligence" defence, has been incorporated into the Fisheries Act.

Section 78.6 ofthe Act provides: ... The Applicable Statutory Requirements under the Management of Contaminated Fisheries Regulations [19] The Management of Contaminated Fisheries Regulations (the "Regulations") made pursuant to s. 8 and 43 of the Act providesas follows: Management of Contaminated Fisheries Regulations FISHERIES ACT Regulations Respecting the Management of Contaminated Fisheries...

Short Title 1 These Regulations may be cited as the Management of Contaminated Fisheries Regulations.

Interpretation 2 In these Regulations, contaminated, with respect to fish, means fish in or on which bacteria, toxins, chemical compounds or other substances are present to adegree that may constitute a danger to public health ... Regional Director General means a Regional Director General or an Associate Regional Director General of the Department of Fisheriesand Oceans. ...

Prohibition Order 3(1) Where a Regional Director General has reason to believe that fish of any species in any area are contaminated, the RegionalDirector General may issue an order prohibiting fishing in that area for that species.

(2) Notwithstanding any other regulations made under the Fisheries Act, where a Regional Director General issues an order undersubsection (1) in respect of an area, no person shall, in that area, fish for or catch and retain any species of fish specified in the orderunless (

a) the person is the holder of a licence issued under subsection 4(1) and is carrying that licence; or (

b) the person is named in a licence issued under subsection 4(1) and is carrying a copy of that licence. Licence 4(1) Subject to subsection (2), on application and payment by a person of the appropriate fee set out in the table to this subsection, theMinister may issue the person a licence authorizing the person and any other person named in the licence to fish in any area in respect ofwhich an order is issued under subsection 3(1), for any species specified in that order. [table omitted]

(2) Where a person wishes to obtain a licence to fish for food purposes, the person shall submit to the Minister a decontaminationplan that satisfies the Minister that the fish will be decontaminated before being used for human consumption. 5 No person who catches and retains (

a) fish under a licence to fish for the purpose of scientific investigation shall use the fish for any purpose other than scientificinvestigation; (

b) fish under a licence to fish for food purposes shall handle the fish except in accordance with the decontamination plan submittedunder subsection 4(2) in connection with the licence; or (

c) fish under a licence to fish for the purpose of obtaining bait shall use the fish for any purpose other than bait. Framework for Sentencing The Purpose, Principles, and Objectives of Sentencing Generally [20] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44, at paragraph 14, and R. v.

Angelillo, 2006 SCC 55, atparagraph 22). [21] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code, butalso be mindful that depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R.v. McCormick, 2006 ABCA 410, at paragraphs 9 to 12). [22] In R. v. Nanji, [2009] B.C.J. No. 521, 2009 BCPC 79 , the Honourable Judge Woods of our Provincial Court providesa useful

summary to deal with the purpose and principles of sentencing set out in the Criminal Code by drawing from the decision of ourBritish Columbia Supreme Court in R. v. Pommer (infra). [23] Quoting Judge Woods from paragraph 12 in the Nanji decision, he says: [12] In R. v. Pommer, 2008 BCSC 737, D. Smith J. (as she then was) recently provided a strikingly succinct, complete and "to thepoint" generic

summary of the relevant purposes, principles and objectives of sentencing with which I find myself in respectfulagreement. I reproduce that

summary below, believing it to be fully applicable to the case at bar: "The 'normative' principles of sentence are set out in ss. 718, 718.1, and 718.2 of the Criminal Code (see R. v. L.M., 2008 SCC 31.

Thefundamental purpose of [the sentence] is to contribute, along with crime prevention initiatives, to respect for the law and the maintenanceof a just and peaceful society by imposing fair sanctions that reflect the objectives of sentencing as identified in s. 718 of the CriminalCode: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders fromsociety, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and topromote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

Section 718.2 lists other sentencing principles to be considered including aggravating or mitigatingcircumstances relating to the offence or the offender, evidence that the offender in committing the offence abused the offender's spouseor a position of trust in relation to the victim; that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should beconsidered. [24] Continuing with the quote from R. v. Pommer:

In this case, the conditional sentencing regime as set out in s. 742.1 may be available if the court is satisfied an appropriate sentence ofimprisonment would be less than two years, that serving the sentence in the community would not endanger the safety of the communityand would be consistent with the fundamental purpose and principles of sentencing as set out in

section 718 to 718.2 of the CriminalCode." (At paras. 42-44) [25] As noted by Romilly J. in R. v. Ralph, [2014] B.C.J. No. 485, when considering the requirements of s. 718.2(

b) that a "sentenceshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" requires an analysisof what is commonly referred to as the range of sentence for a specific offence (see paragraph 26). However, because of theproportionality principle and individualized sentences, the parity principles does not preclude disparity where warranted by thecircumstances. There is no such thing as a uniform sentence for a particular crime (see R. v. L.M., 2008 SCC 31 , [2008] 2S.C.R. 163). [26]

Section 718.2(

c) requires that: ... where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh... Conditional Sentences and Conditional Discharges [27] The terms "conditional sentence order" and "conditional discharge" may have similarities in name and may lead to someconfusion among the general public, but the results are dramatically different. As noted by Chief Justice Bauman, who serves as ChiefJustice of both the Yukon Territory Court of Appeal and the British Columbia Court of Appeal, in the decision of R. v. Samson, [2015]Y.J.

No. 18, 2015 YKCA 7, at paragraph 11 says: [11] A discharge is available when the sentencing judge considers it "to be in the interests of the accused and not contrary to thepublic interest" (s. 730(1)).

A discharge is somewhere between a conviction and an acquittal in the sense that a person who has beengranted a discharge has no criminal record and has not been convicted of a criminal offence, but has been found guilty of a criminaloffence (Clayton Ruby, Sentencing, 8th ed. (Markham, ON: LexisNexis, 2008) at 414). [28] Thus, the consequences of a conditional sentence order for any of the offenders is that he will have a Fisheries Act convictionand hence a record, while if he is granted a conditional discharge, he will not have a record for such an offence.

Conditional Sentences [29] The principles which underlie conditional sentences are set out in s. 742-742.7 of the Criminal Code. R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, sets out the proper approach to the application of these principles (see para. 127). [30] Some of those principles that are particularly relevant to this case are as follows: (

a) A conditional sentence is intended to address punitive and rehabilitative sentencing objectives and should generally includepunitive conditions that restrict the offender's liberty. (b) "Safety of the community" not being endangered is merely one of the statutory requirements for imposing a conditional sentenceand is not the primary consideration. The threat of the specific offender must be considered. A sentencing judge must consider the riskof the offender reoffending and the gravity of the damage that could ensue. That risk should be assessed in light of conditions that can beattached to the sentence to thereby reduce any risk to an acceptable level. (

c) A conditional sentence is available for all offences in which the statutory prerequisites are satisfied and there is no presumptionthat conditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determiningwhether a conditional sentence is appropriate in the circumstances. (

d) Serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites aresatisfied, but there is no presumption in favour of a conditional sentence. (

e) A conditional sentence can provide a significant amount of denunciation, particularly where onerous conditions are imposed andthe terms of the sentence is longer than would have been imposed as a jail sentence. (

f) A conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed and judges should be waryof placing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there may becircumstances where deterrence will warrant incarceration. (

g) When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, aconditional sentence will be the appropriate sanction subject to considerations of denunciation and deterrence. (

h) While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence,conditional sentences may be imposed even if such factors are present. Conditional Discharges [31] The position that is put forward by defence counsel is that each of these matters is appropriate for consideration of conditionaldischarges and reliance is therefore placed on R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559. [32] Fallofield is the leading authority with respect to the granting of conditional discharges.

The test that is outlined in Fallofield isthat the granting of a discharge must, first of all, be in the interests of the accused and the second leg of the test is that it must not becontrary to the public interest.

[33] Fallofield draws the following conclusions with respect to the application of s. 730 for discharges. They are listed as follows:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that itis not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by [what is now s. 730] should not be exercised as an alternative to probation or suspended sentence.

(8) Section [730] should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstancesof cases. Suspended Sentences [34] The British Columbia Court of Appeal in the recent decision of R. v. Voong, 2015 BCCA 285 , [2015] B.C.J.

No.1335; 2015 BCCA 285, reviewed the nature of a suspended sentence and noted at paragraphs 19 and 20 as follows: Nature of the Suspended Sentence 19 Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather thanimpose a sentence (s. 731(1)(a)), and to place a person on probation for a maximum of three years (s. 732.2(2)(b)). If an offender who ison probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before thecourt for sentencing.

At that point, the judge may impose any sentence that could have been imposed at the time the sentence wassuspended (s. 732.2(5)(d)). 20 If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may also impose optionalconditions (s. 732.1(3)(a)-(g.2)).

Under s. 732.1(3)(h), the Court may also impose any other "reasonable condition ... for protectingsociety and for facilitating the offender's successful reintegration into the community". [35] In Clayton Ruby, Sentencing, 8th edition (supra) [“Ruby”], at page 434-436, the use of a suspended sentence and accompanyingprobation is canvassed in fuller detail. [36] Ruby states that a suspended sentence and probation are especially useful in cases that do not require a period of incarcerationfor deterrence or denunciation.

The learned author further notes that imposition of a suspended sentence is not confined to offences thatdo not require deterrence. The suggestion is made that where a suspended sentence and probation are imposed, general deterrence byway of a period of imprisonment remains a possibility if the offender chooses to avoid the controls selected by the court for hisrehabilitation. Thus, an offender who "chooses to avoid the controls" by breaching may very well end up in prison (see Ruby, pages 434and 435, para 10.5). [37] Parenthetically, I note that Kelly J.A. in R. v. Hudson, (ON CA), [1968] 2 C.C.C. 43 (Ont.

C.A.), at paragraph11 opined that a suspended sentence can conceivably be more onerous than a sentence involving immediate imprisonment.

Such mightbe the case if an offender were to breach in the last month of the probationary period and thus be exposed to serving the full termappropriate for the offence of which he was convicted, notwithstanding he had virtually completed the terms of his probationsatisfactorily. [38] Ruby further notes a suspended sentence and imposition of probation is unlikely to be appropriate where an offender has manyprevious criminal convictions, there is a sophisticated criminality, or there are very serious charges.

Notwithstanding the existence ofsuch factors, they do not militate absolutely against the use of the suspended sentence and the imposition of probation (see Ruby, page435 at paragraph 10.5). [39] Similarly, a suspended sentence may be appropriate even if probation has not been fully successful in the past, especially if aprevious probation was somewhat helpful.

In situations where the offender has been on several probation orders with "discouragingresults", a court should pause long and "have knowledge of grave and weighty matters in mitigation before trusting the offender with afurther period of probation," noting further that, while the community is well served by a factor of rehabilitation, it is also entitled toprotection against offenders who "demonstrate that they are a bad risk." In support of this proposition, Ruby cites R. v.

Walker (1981), 3A.Crim.R. 200, at page 203 (see Ruby: page 435 at paragraph 10.6). [40] Thus, Ruby notes that the most obvious use of a suspended sentence and a probation order is in the case of first offenders who

have committed crimes that are not too serious. In such situations, courts should explore other dispositions which are open to it and impose a custodial sentence only where "the circumstances are such or the offence is of such gravity that no other sentence can be appropriate," (see Ruby, pages 435-436 at paragraph 10.7). Facts [ 41 ] I will deal first with the general circumstances surrounding the offences that are before me and then with the particular circumstances surrounding each of the Informations in the order that they were presented to the court.

Circumstances Surrounding the Offences General Factual Background [ 42 ] I understand that no issue is taken that the Boat Harbour area which contains a marina and wharves as well as residential and commercial facilities was subject to Closure 17.35 at the time of these offences and has been subject to that closure since around 2005 and 2006.

As I understand it, the closure was instituted by Environment Canada under the Canadian Shellfish Sanitation Program ("CSSP") which is jointly administered by the Canada Food Inspection Agency ("CFIA"), Environment Canada ("EC"), and Fisheries and Oceans Canada ("DFO"). [ 43 ] I further understand that there is no issue that the CSSP has a goal to protect Canadians from health risks associated with the consumption of contaminated bivalve mollusc and shellfish.

Furthermore, under the CSSP, the Government of Canada implements controls to verify that only shellfish that meet food safety and quality standards reach domestic and international markets. [ 44 ] A letter from the CFIA dated November 26, 2014, entered into evidence as Exhibit Number 1 and which contains a subject line, "Impact of Harvesting for Human Consumption those Bivalve Mollusc and Shellfish Under Closure 17.35," (the "Exhibit 1 Impact Statement"), states as follows with respect to Closure 17.35: According to Environment Canada, Closure 17.35 is in place due to recorded fecal coliform counts exceeding the water quality standard for direct shellfish harvest.

Pollution sources identified at the time of survey were suspected to be the large number of boats moored at the wharves near the entrance to the harbour. Septic seepage was also identified as a concern from homes located along the foreshore. These pollution source inputs can introduce fecal material into shellfish growing waters which may contaminate shellfish.

Although this closure was invoked due to water quality exceeding the standard, chemical contamination was also identified in the soils and sediments of the harbour which were found to be contaminated with elevated levels of polyaromatic hydrocarbons (PAHs) and mercury; these two can contaminate shellfish-growing water and shellfish. Pathogenic microorganisms and other contaminants can be introduced into shellfish via the growing area water.

Given the above pollution sources, if bivalve molluscan and shellfish are harvested for human consumption from the area under Closure 17.35, potential food safety impacts include adverse effects from chemical contaminants associated with the wharves as well as from PAHs, many of which have been found to be carcinogenic or mutagenic; acute or chronic illnesses from mercury; and illnesses such as typhoid, salmonellosis, gastroenteritis including norovirus illness and infectious hepatitis. [ 45 ] I understand that the foreshore and tidal areas of Boat Harbour where the illegal harvesting subject of several of the present charges was taking place were within 100 to 200 metres of a marina thereby giving rise to the concern for both fecal coliform and chemical contamination. [ 46 ] As discussed below, it is Crown's sentencing position that there is a significant health hazard to the general public if contaminated fish become part of the food chain.

In that regard, Crown has placed before the court by way of a documentary exhibit what is described as an impact statement. [ 47 ] In that regard, Crown entered as Exhibit Number 3 a letter prepared by Canadian Food Inspection Agency dated February 2003 prepared by Klaus Schallie, Acute Aquaculture and Molluscan Shellfish Specialist, Western Area Fish Program Network, which contains the subject line, "Impact Statement-Consequences of Harvesting Shellfish from Contaminated Waters" (the "Exhibit 3 Impact Statement"). [ 48 ] The Exhibit 3 Impact Statement describes the number of significant diseases that can occur from the consumption of affected and contaminated shellfish.

These are categorized into a number of different types of diseases and statistics are given with respect to the number of people who have been seriously impacted by and, in some instances, have died as a result of having consumed contaminated shellfish. [ 49 ] The Exhibit 3 Impact Statement also specifies that there is an economic importance to the shellfish industry in British Columbia.

From that, I am to infer, if there is a lack of consumer confidence in shellfish safety, then it will have an adverse impact on the sale of shellfish within the community. [ 50 ] The Exhibit 3 Impact Statement provides additional information about the Canadian Shellfish Sanitation Program (CSSP). It states as follows: The purpose of this program is to minimize the risk of illness from consumption of bivalve shellfish. In 1948, a bilateral treaty was signed between Canada and the United States regarding standards for growing waters, processing requirements, and biotoxin monitoring, and enforcement.

This permits shellfish from other approved processors to move freely from one country to the other. Other countries who have also agreed to these standards are Mexico, Chili, Australia, New Zealand, Japan, and Korea. [ 51 ] The Exhibit 3 Impact Statement provides information about "growing water standards" for shellfish. The standards specify the maximum fecal coliform levels detected through sampling in each of four water standard categories, namely: approved, conditional approved, closed, and prohibited. The basis for using a sampling process is that "it is impractical and prohibitively expensive to test for

all known pathogens that might be present." However, the Exhibit 3 Impact Statement states: It has been established that there is a relationship between the levels of these bacteria and the probability that there are pathogenic (disease/illness-causing) bacteria or viruses present. [ 52 ] The Exhibit 3 Impact Statement provides further as follows with respect to the impact of natural harmful algal blooms commonly called "red tides" and the toxins resulting from them: Bivalve species such a manila clams, butter clams, oysters and scallops accumulate these toxins at differing rates.

Of particular concern are butter clams which are able to retain high levels of PSP toxin for over a year. For this reason, DFO, on the recommendation of CFIA, has put in place a blanket harvest ban for the species. If a fishery is planned, pre-harvest samples are required to ensure that levels of toxins are acceptable prior to lifting the restriction for the area in question.

There have been incidents in the past where individuals have harvested and consumed butter clams under the harvest ban and have been hospitalized as a result of PSP. [Being a reference to Paralytic Shellfish Poisoning] [ 53 ] Hence, the overall thrust of the Exhibit 3 Impact Statement is that there is a significant danger both to the general public, to consumers, and to the economy if shellfish which are improperly harvested or improperly treated gain their way into the food system.

It is on this basis that Crown asserts that deterrence and denunciation are the significant factors which should be taken into account when establishing an appropriate sentence for each of the offenders in this case. [ 54 ] As I understand it, no assertion has been made by Crown that the various offenders were engaged in a commercial activity, nor were they motivated financially to be selling the harvested clams or distributing them for financial gain.

I understand that in most cases, the clams were being harvested as food for consumption by the offenders' families or other members of the Snuneymuxw First Nation and for other social and ceremonial reasons within that community. [ 55 ] I also understand that in all cases where illegally harvested clams were seized by DFO officers, they were returned to the ocean and that they did not get into the food system nor was any individual caused illness by any clams harvested by these offenders.

Background Information Provided by Testimony of Trish Pantell [ 56 ] During the course of the sentencing hearing, viva voce evidence was provided by Trish Pantell, who is a Native Court Worker with historical and family ties with Snuneymuxw First Nation and who has significant familiarity with the issues that have arisen from a number of Fisheries Act charges being laid for harvesting activities in the Boat Harbour and in the Nanaimo Harbour areas. [ 57 ] She adopted and confirmed information specifically contained in the presentence report for Dean Thomas Manson completed November 7, 2014 which, at page 6, states that Snuneymuxw First Nation is one of the largest First Nations in British Columbia with a population of over 1,700 people.

As I understand it, they are one of the few British Columbia First Nations that have a pre- Confederation treaty with the Crown being the Treaty of 1854.

Adopting the words of the author of the presentence report, she confirms that the treaty has been systematically undermined and that, as a result, the members of this First Nation live on the smallest reserve land base per capita than any First Nation in British Columbia. [ 58 ] She further confirmed the information that she had provided to the author of this presentence report and which is set out on page 7 to the effect that there are no unique sentencing procedures offered by the Band, apparently as a result of funding cuts.

She further confirmed her suggestion that if there are a growing number of men being charged with harvesting clams (which I understand to be the case), that the Snuneymuxw First Nation and DFO should be working together to "develop a restorative justice program that educates offenders in how the impacts of harvesting contaminated shellfish affects not only individuals but the community as a whole (ex. financially)." She further confirmed and adopted her opinion expressed to the author of the presentence report and again set out on page 7 to the effect that: Criminalizing men for these offenses will not stop the problem. “There needs to be more education.

Often it is the men that are putting food on the table and placing the breadwinner in jail creates emergencies for the family left behind. [ 59 ] Ms.

Pantell also confirmed, based upon her role as a Native Court Worker, as to the correctness of the information set out in the Dean Thomas Manson presentence report to the effect that Snuneymuxw First Nation is not currently providing restorative approaches to criminal behavior. [ 60 ] On the issue of restorative justice programs, I do not understand there to be any significant dispute between Crown and defence counsel regarding the accuracy of the further statement contained on page 7 of the Dean Thomas Manson presentence report to the effect that DFO has restorative justice programs wherein the arresting DFO officers refer an offender to the program (presumably before court intervention) or can be referred to programing at sentencing in cases of a sentencing circle with DFO. [ 61 ] Ms.

Pantell further testified to the effect that currently (and I gather for some period of time) Band members are not being given instructions or training about closed areas or restrictions on shellfish harvesting. Also, she testified that in 2011 and 2012, there was some apparent confusion within members of the Snuneymuxw First Nation about the closure areas in and around Boat Harbour.

She described it as a "murky understanding" about the exact closure areas and those that may not have been subject to the closure. [ 62 ] She referred to two letters entered by defence as Exhibits 4 and 5 both from Chris Good, Lands and Resources Coordinator with Snuneymuxw First Nation, with a subject line of "Re: Clam Harvesting". The first is dated October 9, 2015, addressed to the Offender Taylor. The second is dated October 27, 2015, and is directed "To Whom It May Concern," which contains the same subject line. The letters are substantially identical in their wording.

The relevant provisions read as follows: I am sending you this letter to confirm that there may have been a possibility of a misunderstanding between us on or around February 2012 in regards to open areas for clam harvesters to harvest clams. I hope that we can have better communication in the future. To that end, the Snuneymuxw Fisheries Department will manage this resource through the Snuneymuxw Office and have a greater presence

throughout our territory. Part of our restructuring will consist of educating members about the business end of the process and suitable harvests for long-term employment opportunities in the community. Traditional practices and food and social ceremonial will also be incorporated into the training. [ 63 ] The letter goes on to describe the type of training that is planned. Two types are particularly noteworthy, namely, “make out the lease boundaries" and, "sustainable harvesting and best practices". [ 64 ] Ms.

Pantell described Chris Good's official function with Snuneymuxw First Nation is to "interface between DFO and the Band and the members of the Band." He is responsible for overseeing the work of the Snuneymuxw First Nation Fisheries Guardians, whom I understand have a role in monitoring fishing activities in the traditional territories of that First Nation. [ 65 ] I note the time.

I am going to stand down until two o'clock in order to complete the rendering of my reasons. [ 66 ] THE SHERIFF: Order in court. [PROCEEDINGS ADJOURNED FOR NOON RECESS] [PROCEEDINGS RECONVENED] [ 67 ] THE SHERIFF: Order in court. [ 68 ] THE COURT: Please be seated. Continuing with the reasons for sentencing. [ 69 ] Ms. Pantell, on various occasions, had spoken to Chris Good about the subject matter of these letters which I understand confirmed her own understanding and knowledge of the circumstances. [ 70 ] Ms.

Pantell testified about the existence of a video recording, and which was apparently produced by DFO in conjunction with Snuneymuxw First Nation some time ago, in 2010 or 2011, but that there was little information circulated within the Snuneymuxw First Nation community about the existence of the video. She indicated that she was not aware of any processes in place by either DFO or by Snuneymuxw First Nation in order to publicize its existence. She testified that the showing and distribution of the video was under the control of DFO.

She only became aware of it in 2015 and received a copy during that timeframe. [ 71 ] The video in English is entitled, "A Place with Many Shells." It was viewed in court as part of the evidence in the defence case. It contains a relatively brief history about and the traditional role of the clam both as a food source and in trade and in ceremonial traditions of the Snuneymuxw First Nation.

It further focuses in the present on the importance of sanitary closures for the harvesting of clams and speaks of the risks of serious sickness and even death from clams and other shellfish infected with high fecal coliform levels or with paralytic shellfish poisoning from red tide conditions. The video stresses the importance of obtaining information regarding the ability to harvest seafood in areas that are actually open, by consulting the DFO website. [ 72 ] Ms.

Pantell testified about the relatively recent increase of cooperative activity between the Snuneymuxw First Nation and DFO in the areas of training and education.

She knew about an agreement between the DFO and the Band management, but had not seen any formal documentation. [ 73 ] In that regard, a document known as a "Comprehensive Fisheries Agreement," between DFO and Snuneymuxw First Nation, dated the 19th of March 2012, was presented to her during her testimony, but she said that she had not seen it, nor was she aware of any programs to make Band members aware of it or any of the matters covered by that agreement in recent years and, certainly, not since it was apparently entered into by the parties back in 2012. [ 74 ] The purpose of that Comprehensive Fisheries Agreement, as stated within the document, is to provide for the orderly management of fisheries and the involvement of the Snuneymuxw First Nation in the management, protection, and enhancement of aquatic and fishery resources.

It sets out the arrangements by which the Department of Fisheries will provide access to fishery resources for Snuneymuxw First Nation in addition to the contribution of certain funds to support their various activities.

Circumstances Surrounding Information 76010-1 ("Information Number 1") [ 75 ] Information Number 1 alleges that on December 14, 2011, the offenders Johnnie, Derrick Manson, and Taylor, together with Darren Edward Manson, did unlawfully fish for clams in the Boat Harbour area which was closed pursuant to s. 3(1) of the Regulations without being the holders of a license issued pursuant to s. 4(1) of the Regulations, and thereby contravened s. 3(2) of the said Regulations and committed an offence described in s. 78 of the Act. [ 76 ] DFO officers arrived at 1:40 a.m. and observed lights on the beach area and four individuals harvesting clams.

The above- named offenders were the individuals who were conducting this activity.

Approximately 500 pounds of clams in the possession of the three named offenders before the court on this charge, contained in a number of bags, were seized. [ 77 ] Two signs identifying the area as being closed or as being subject to a harvesting closure were in place and were visible. [ 78 ] The charges on Information Number 1 were sworn approximately one-and-a-half years after the offence had occurred. [ 79 ] Darren Edward Manson, who was named in Information Number 1, was separately sentenced and fined $1,000 on January 24th, 2014.

Circumstances Surrounding Information 76003-1 ("Information Number 2") [ 80 ] Information Number 2 alleges that on February 5th, 2012, the offenders, Johnnie, Dean Thomas Manson, and Taylor, did unlawfully fish for clams in the Boat Harbor area which was closed pursuant to s. 3(1) of the Regulations without being the holders of a

license pursuant to s. 4(1) of the Regulations and did thereby commit an offence described in s. 78(

a) of the Act. [ 81 ] DFO officers arrived at approximately 7:45 p.m. and observed lights in the Boat Harbour area. Their investigation confirmed the existence of two signs posted in the parking lot area leading down to the beach trail. The signs indicated that the area was closed to shellfish harvesting due to paralytic shellfish poisoning concerns. Three individuals, being the above-named accused were observed harvesting clams. The DFO officers interrupted them.

The indication was that the Offender Taylor had 20 pounds of clams in his possession. [ 82 ] As I understand it, the Offender, Dean Thomas Manson, was found to have 15 pounds of clams in his possession and as previously noted the Offender Taylor had 20 pounds of clams in his possession. Crown was unable to specify the exact amount of clams, if any, in the possession of the Offender Johnnie. [ 83 ] The charges on Information Number 2 were sworn approximately 16 months after the offence had occurred. [ 84 ] The offender, Mr. Johnny, and the offender, Mr.

Taylor, are two of the same offenders, named for the offences in Information Number 1. Circumstances Surrounding Information 77713-1 ("Information Number 3") [ 85 ] Information Number 3 alleges that Derrick Earl Manson and Norman James Milburn on April 30th, 2013, did unlawfully fish for or catch and retain clams, being bivalve molluscs in a prohibited area contrary to s. 3(2) of the Regulations thereby committing an offence under s. 78 of the Act. [ 86 ] DFO officers were on patrol at Boat Harbour at approximately 3:00 p.m. during a low tide.

They observed two males, being the two above-named individuals, raking in an intertidal area and placing clams into a bucket and a mesh sack. Between the two named individuals, they were found to have 40 pounds of harvested clams. [ 87 ] The investigation confirmed the existence of two signs posted in the parking lot area leading to the beach trail. The signs indicated that the area was closed to shellfish harvesting due to paralytic shellfish poisoning concerns.

Crown stated that there were another five signs in the Boat Harbour area confirming the closure of the area for shellfish harvesting due to pollution and contamination. [ 88 ] Derrick Earl Manson is one of the same offenders named for offence set out in Information Number 1.

Derrick Earl Manson told the Fisheries officers that they were fishing for "food, social and for ceremonial reasons"; that he and others had eaten the clams from this area and nobody had gotten sick from eating the clams harvested in this area. [ 89 ] The charges on Information Number 3 were sworn approximately nine months after the offence had occurred. [ 90 ] I understand that Crown entered a stay of proceeding against James Milburn on August 31st, 2015, and that he successfully completed some form of a diversion program.

Circumstances Surrounding Information 77712-1 ("Information Number 4") [ 91 ] Information number 4 alleges that Jeremy Trent Harris, Dean Thomas Manson, Isaac Hayes Manson, and William John Patrick Wyse did, on May 14, 2013, unlawfully fish for or catch and retain bivalve molluscs, namely clams, in a prohibited area contrary to s. 3(2) of the Regulations and thereby committed an offence under s. 78(

a) of the Act. [ 92 ] DFO officers received a report from a member of the public that individuals were digging for clams in a restricted area. Fisheries officers were dispatched to and arrived at Boat Harbor at approximately 3:10 p.m. Two vehicles associated with the diggers were parked in front of a closure sign in the parking lot. Crown stated that there were another five signs in the Boat Harbour area confirming the closure of the area for shellfish harvesting due to pollution and contamination. [ 93 ] The fisheries officers observed the four individuals named in the Information harvesting clams.

They were found to have 800 pounds of clams between them in their possession. [ 94 ] Dean Thomas Manson made a statement to the Fisheries officers to the effect that he knew the area was closed to shellfish harvesting, but asserted that nobody had gotten sick from eating clams from this closed area. [ 95 ] Dean Thomas Manson is one of the same individuals also named in Information Number 2 and on both Counts 1 and 2 in Information Number 5.

Jeremy Trent Harris is also named on Counts 1 and 2 in Information Number 5. [ 96 ] The charges on Information Number 4 were sworn approximately eight months after the offence had occurred. [ 97 ] Isaac Hayes Manson originally had entered a plea of not guilty and set a trial date for October 28, 2015. He subsequently applied and was permitted to change his plea to guilty. His separate sentencing is awaiting the outcome of the sentencings in these matters. [ 98 ] John Patrick Wyse was referred to a restorative justice program outside of the court system.

I understand that he had no prior record and no subsequent offences or subsequent charges to those set out in Information Number 4. Circumstances Surrounding Information 77738-1 ("Information Number 5") Count 1 [ 99 ] Count 1 of Information Number 5 alleges that Dean Bradley Canute, Jeremy Harris, Dean Thomas Manson, and Isaac Hayes Manson, on or about March 23rd, 2014, did unlawfully fish for or catch and retain bivalve molluscs, namely clams, in a prohibited area

contrary to s. 3(2) of the Regulations and thereby committed an offence under s. 78(

a) of the Act. Count 2 [100] Count 2 of Information Number 5 alleges that Dean Bradley Canute, Jeremy Harris, Dean Thomas Manson, Isaac HayesManson and Gary Manson, on or about March 23rd, 2014, did possess fish, namely clams, caught in contravention of the Act or theRegulations contrary to s. 33 of the Act and thereby committed an offence under s. 78(

a) of the Act. [101] These offences occurred in the Nanaimo Harbour area which at the time of the offence was closed to harvesting due to a redtide. I also understand that the area was subject to a closure due to high fecal coliform counts. [102] DFO officers attended at a certain location based upon receipt of an anonymous tip. They arrived at approximately 5:35 p.m.and saw four individuals in the water harvesting shellfish in the closure area and one individual in a truck on shore. As I understand it,the DFO officers videotaped the four individuals while they were conducting their harvest.

As it turned out these were four of theindividuals named in Counts 1 and 2. [103] Dean Thomas Manson was found to be in possession of 229 pounds of harvested clams from the closed area. [104] Dean Thomas Manson, besides being named in both Counts 1 and 2 of Information Number 5, is also the same individualnamed in Information Number 2 and Information Number 4. [105] Jeremy Trent Harris, besides being named in Counts 1 and 2 of Information Number 5, is also the same individual named inInformation Number 4. [106] The charges on Information Number 5 were sworn approximately three months after the offences had occurred. [107] Dean Bradley Canute appeared before me and, having entered a plea of guilty on Count 1, was separately sentenced on February2nd, 2015.

Based on a joint submission, Mr. Canute, also a member of Snuneymuxw First Nation, who was a first-time offender and hadno alleged criminal record, was fined $1,000 with time to pay and placed on a 12-month probation order with 100 hours of communitywork service to be completed within the first 10 months of the probation order. Count Number 2 was stayed by the Federal Crownagainst Mr. Canute (see R. v. Canute, [2015] B.C.J.

No. 527; 2015 BCPC 50 ). [108] Federal Crown entered a stay of proceedings against Gary Manson on March 24th, 2015. [109] Isaac Hayes Manson originally had entered a plea of not guilty and set a trial date for October 28, 2015. He subsequentlyapplied and was permitted to change his pleas on Counts 1 and 2 to guilty. His separate sentencing is awaiting the outcome of thesentencings in these matters.

Overview of Crown's Sentencing Position [110] Federal Crown says that of all the sentencing objectives to be taken into account in this case when imposing just sanctions unders. 718 of the Criminal Code, the most important are denunciation of the offenders and specific and general deterrence. [111] Federal Crown says that substantially serious consequences, injuries, and potential human deaths could have resulted had theshellfish harvested by these offenders from a contaminated area made their way into the human food supply. [112] Furthermore, the activities of these offenders in harvesting clams from closed areas assisted in creating the impression within thebroader community and, in particular, the Snuneymuxw First Nation that this seafood could be eaten safely, which Crown says isinaccurate.

Thus, public confidence in the safety of the food source was put significantly at risk. [113] Crown strenuously opposes the granting of conditional discharges on the basis that such sentences would not be in the bestinterest of community that has been put at risk because of the activities of these offenders. [114] Given the gravity of these types of offences and the past records of some of the offender for other relevant offences, FederalCrown also submits that a conditional sentence order would not be appropriate for them on the application of the criteria laid out by theSupreme Court of Canada in R. v.

Proulx, supra. [115] As I understand their submission, Crown says that these are circumstances where the need for denunciation or deterrence is sopressing that incarceration will be the only suitable way in which to express society's condemnation of the offenders' conduct and to detersimilar conduct in the future. [116] Crown says specifically that, based upon the past criminal record of some of the offenders and, in some cases, the past failure ofsome of the offenders to abide by court-ordered conditions and, in some cases, the commission of other public welfare offences, theseoffenders collectively and individually pose a significant risk to reoffend and that there is a gravity of the damage to the community thatcould ensue should any of these offenders reoffend. [117] I infer from Crown's submissions that, for similar reasons, they oppose the imposition of suspended sentences with periods ofprobation. [118] Crown also submits that where some of these offenders have been charged (but had not yet necessarily been convicted nor hadentered pleas of guilty) and then were subsequently charged with further offences, even though they were not aware of the prior pendingcharges or aware that prior charges may have been laid, and they have now entered guilty pleas on such prior charges, that it is open atthis time when dealing with the sentencing on the subsequent charges to treat such offenders as having prior convictions.

Thus, saysCrown, they are subject to imposition of a greater statutory penalty or a more severe sentence. No case authority is submitted for thisproposition. I do not find this argument to be persuasive.

[119] Crown does cite the Alberta Court of Appeal decision in R. v. Terroco Industries Limited, 2005 ABCA 141, at paragraph 38, insupport of the proposition that it is an aggravating factor if an offender has a prior record for non-compliance with regulatory offences orregulatory requirements and, similarly, if the offender has been warned by authorities but persists in non-compliant conduct, then it is anaggravating factor. Thus, says Crown, a "step-up" in sentences is warranted in such aggravating circumstances. I do find this argument more persuasive.

Cases Authorities Relied Upon By Crown [120] Crown submits that the Fisheries Act and its Regulations are a statute that creates public welfare offences. Crown cites R. v.Cotton Felts Ltd., (ON CA), [1982] O.J. No. 178 (Ont.

C.A.), in support of the proposition that public welfareoffences range widely from safety and consumer protection to ecological conservation and are accepted as essential in the public interestto ensure standards of conduct, performance, and reliability to make life tolerable for all (see paragraph 19). [121] Crown says that the Cotton Felts case supports the concept that deterrence is at the heart of public welfare offences and thesentences that arise from them (see paragraph 19). [122] At paragraph 23, Cotton Felts says that in these types of offences, deterrence is not to be taken only in its usual negativeconnotation of achieving compliance by threat of punishment but, rather, should be taken as deterrence in a more positive aspect.

It thengoes on to cite with approval R. v. Roussy, [1977] O.J. No. 1208, a case involving a driving offence, which states: But in a crime of this type the deterrent quality of the sentence must be given paramount consideration, and here I am using the termdeterrent in its widest sense. A sentence by emphasizing community disapproval of

an act, and branding it as reprehensible has a moralor educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regardconduct as reprehensible will not likely commit such

an act. [123] The Court of Appeal in Cotton Felts then concludes at the end of paragraph 23 by saying as follows: This aspect of deterrence is particularly applicable to public welfare offences where it is essential for the proper functioning of oursociety for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare ofthe public. [124] Crown has referred the court to a number of decisions in support of the proposed sentences that stress denunciation anddeterrence.

These decisions are mostly cases involving Vancouver Island First Nations individuals who were repeat offenders under theFisheries Act and its Regulations, facing charges for harvesting large amounts of shellfish in a prohibited area. [125] The cases were previously reviewed by me in a decision of R. v. Seward, [2015] B.C.J. No. 642, 2015 BCPC 71 , atparagraph 44, and they include as follows: R. v. Clyde Alex Johnny, B.C.S.C., Duncan Registry File 12126, (October 28, 1991) being adecision of Mr. Justice Tyrwhitt-Drake; R. v. Kunihiro, [1990] B.C.J.

No. 2995, a reported decision of Hubbard P.C.J. in the BritishColumbia Provincial Court sitting at Victoria; R. v. Marvin Patrick Johnny and Clyde Alex Johnny, an unreported decision of theProvincial Court, Duncan Registry Number 16961 (February 13th, 1996); R. v. Martin Patrick Johnny and Kevin Marcel Sylvester, anunreported decision of the Provincial Court, Duncan Registry Number 273610-2-C (November 14th, 2007); and R. v.

Dale GordonCrocker, Leonard Raymond Aleck, Corinna May Daniels, Richard John Aleck, and Dion James Daniels, an unreported decision of theProvincial Court, Duncan Registry Number 19061 (February 20th, 1998). [126] In each of those cases, significant sentences, including custodial sentences, were imposed upon the charged individuals and eachof those cases cites deterrence as a primary factor in sentencing. I have reread those cases and have taken them into account in coming toa determination of fit sentences in the matters before me.

Overview of the Sentencing Positions of the Offenders [127] There were a total of three defence counsel representing three of the offenders and one defence counsel representing two of theoffenders in the matters before me. I heard a number of general submissions which were either explicitly or implicitly adopted by alldefence counsel.

I will briefly summarize those positions. [128] The general thrust of all of the submissions is that given all of the circumstances surrounding the various charges thatrehabilitation through forms of restorative justice should be the focus of the sentences for each of the offenders in these matters.

Thus, itis suggested that the requirements for conditional discharges have been met and should form the basis of the sentences. [129] In no particular order defence counsel point to the delay on the part of DFO and Federal Crown in proceeding with some ofthese charges in a timely fashion thereby resulting in a greater risk to the offenders.

Crown rejects this assertion relying upon theprinciple of prosecutorial discretion. [130] As I understand this submission, many of the offenders believed because of their discussions with DFO officials and significantlapses of time, in certain cases, that formal charges would not be laid against them or that the matters would be dealt with by someprocess of diversion or restorative justice through Snuneymuxw First Nation, only to then find out that charges under the Act were, infact, recommended by DFO and approved by Federal Crown.

It is submitted that this proved to be very confusing to the offenders and tothe general membership of the Snuneymuxw First Nation. [131] I further understand that the offenders say that the DFO and the leadership of Snuneymuxw First Nation added to the confusionby not giving clear information or offering education and training about the areas that were closed to harvesting and also about the risksof harvesting from the closed areas, notwithstanding that the Comprehensive Fisheries Agreement had been entered into during a periodthat many of these offences occurred.

The letters from Chris Good of Snuneymuxw First Nation and the testimony of Native CourtWorker Trish Pantell regarding the "murky understanding" about where Band members could legally fish are relied upon with respect tothe general and specific confusion that existed at the time these offences were committed. I do agree that there were elements of

confusion surrounding the closures, but I am also mindful that the closure signs were readily visible adjacent to the closed areas wherethe offences occurred. [132] In most cases, the offenders believed, based upon their personal knowledge and the common beliefs in the populous of theSnuneymuxw First Nation, that clams taken from the closed locations were safe to eat and nobody had been stricken as a result of eatingthem. In fact, it is submitted by some defence counsel that there is nothing to indicate with any certainty that any of the clams that wereharvested were, actually contaminated.

While that may be the case, the actual contamination of the clams is not an element of theoffences before me.

The closures were in place to deal with the risks of contamination. [133] It is further submitted that some of the offenders and their families had developed what they believed to be safe ways ofpreparing the clams, different from the traditional methods of their people, in order to avoid eating the portion of the clam where there isa concentration of toxins and thereby did limit the risk of illness or injury. [134] Also, it is submitted that the offenders were harvesting the clams as a means of feeding their families and providing food to theelders in the Snuneymuxw First Nation community, all because of financial need. [135] I understand that the offenders are conceding that these factors do not give rise to a due diligence defence and that it is not beingadvanced, but rather it is being submitted that these factors should be carefully and fully weighed as mitigating factors in sentencing.

Iagree that I can consider these factors in mitigation. [136] Furthermore, it is suggested that given the fact that each of the offenders has acknowledged their respective mistakes, it issubmitted that each is remorseful and has apparently been able to learn from their respective mistakes. Therefore I can take all of thisinto account when considering mitigating circumstances. I agree. [137] The defence further submits that I must take into account the direction of the Supreme Court of Canada in R. v. Gladue, [1991] 1S.C.R. 688, when dealing with Aboriginal offenders. [138] That case points out that s. 718.2(

e) of the Criminal Code is not simply a codification or a restatement of existing law. Itspurpose is to ameliorate the serious problem of overrepresentation of Aboriginal offenders in prison and to encourage sentencing judgesto have a restorative-justice approach to sentencing when dealing with them. Therefore, it is viewed as being a remedial provision. Anumber of factors are set out in R. v. Gladue which must be considered by a sentencing judge when determining what a fit sentence is foran Aboriginal offender. [139] This argument was previously made before me recently in another Fisheries case of R. v.

Bob, [2015] B.C.J. No. 2946; 2015BCPC 402 , where at paragraph 78, I noted parenthetically that Gladue principles and a special sentencing approach have beenreaffirmed more recently in R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433. I went on to note that the Ipeelee decision makesit clear that in the process of determining a fit sentence, a judge must consider the unique systemic or background factors that may bringthe particular Aboriginal offender before the court and the types of appropriate sentencing procedures and appropriate sanctions havingregard for the offender's Aboriginal heritage or connections.

Ipeelee further indicates that the Gladue factors must be considered in awide range of cases involving Aboriginal offenders. However, applying these factors on their own does not necessarily justify anAboriginal offender receiving a different sentence or mandating a different result.

They can provide a context for considering case-specific information for an Aboriginal offender. [140] Accordingly, it is on that basis that defence suggests that I should be looking for and considering a rehabilitative sentence foreach of the offenders rather than a harsher sentence with denunciation and deterrence as its primary focus. Thus, restorative justiceshould be a primary goal of any sentence imposed upon each of these Aboriginal offenders.

Therefore, conditional discharges are beingsuggested with the possibility of community work service and/or an educational component. [141] It is submitted that the use of restorative justice by DFO in these types of offences has been generally inadequate andinconsistent and significantly lacking and unimaginative in any form with respect to these particular offenders. [142] Defence counsel also submits that the suggested approach for sentencing advanced by them is consistent with the Minister ofJustice and Attorney General of Canada’s mandate letter issued by the Prime Minister following the change of the Federal Governmentafter last fall's election.

They point to the specific provisions contained within the mandate letter which stress that it is a time for a"renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, cooperation, and partnership." [143] Defence counsel also points to the provisions in the mandate letter directing a review of the government's "litigation strategy"with a view to early decisions to end appeals or positions that are "not consistent with our commitments, the Charter or our values." Ofparticular note is implementing as one of the top priorities a review of "changes in our criminal justice system in sentencing reforms overthe past decade." As part of that mandate, there is a call to have outcomes that should include "increased use of restorative justiceprocesses and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians." [144] I am bound by the decisions in Gladue and Ipeelee.

Notwithstanding the Minister of Justice's new mandate letter, the charges atbar against these offenders continue to be prosecuted before this court and must, therefore, be dealt with appropriately in the context ofthe present law. [145] Collectively, defence submits that Crown's position that these offenders should be treated as having prior convictions forsentencing purposes is not sustainable and is patently unfair.

In particular, issue is taken with the suggestion that because an offender hasentered a guilty plea on another Information or others counts on the same Information that they then should be treated as having a priorconviction. It is pointed out that in some situations the offenders were not aware of charges pending against them or that no charges infact had been laid against when they committed a subsequent-in-time offence. Therefore, says defence counsel, it is not appropriate todea

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