R. v. Seward Date:, 2015 BCPC 71

Citation: R. v. Seward Date: 20150318 2015 BCPC 0071 File No: 77721-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALFRED GABRIEL SEWARD DALE DEMONFORD SEWARD DAVID DONALD SEWARD GERRY CHRISTOPHER SEWARD STUART LARRY JIMMY ORAL REASONS FOR SENTENCE RE: DALE DEMONFORD SEWARD OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for the Crown: S.M. Simpson Counsel for the Defendant: C. Churchill Place of Hearing: Nanaimo , B.C. Date of Hearing: March 18, 2015 Date of Judgment: March 18, 2015 Introduction [ 1 ] THE COURT (Orally): Dale Demonford Seward (the "Offender"), being of First Nations heritage, has pleaded guilty to a single count of contravening s. 33 of the Fisheries Act (the "Act") by committing an offence described in s. 78 (

a) of the Act by unlawfully possessing clams, contrary to s. 3(2) of the Management of Contaminated Fisheries Regulations , that had been caught contrary to regulation in an area closed to harvesting clams pursuant to an order made under s. 3(1) of that regulation. [ 2 ] I must decide what is a fit sentence for this Offender in these circumstances. Federal Crown seeks actual imprisonment for a period of nine months. The Offender's counsel seeks a conditional sentence order with provisions for restorative justice.

Facts Circumstances of the offence [ 3 ] The circumstances as outlined by Crown are not disputed by the Offender. The offence took place on July 18, 2013, at Boat Harbour located at Cedar, south of Nanaimo, British Columbia, on foreshore lands adjacent to part of the traditional territory of the Snuneymuxw First Nation. The Offender is a member of the Snuneymuxw First Nation. [ 4 ] Boat Harbour has been closed to harvesting bivalve molluscan shellfish, such as clams, pursuant to an order made in 2007, due to contamination.

The closure was apparently instituted as part of the Canadian Shellfish Sanitation Program ("CSSP"), which is a federal food safety program jointly administered by the Canadian Food Inspection Agency ("CFIA"), Environment Canada ("EC"), and Fisheries and Oceans Canada ("DFO"). [ 5 ] According to the evidence in the form of a letter from Canadian Food Inspection Agency, the goal of CSSP is to "protect Canadians from health risks associated with the consumption of contaminated bivalve molluscan shellfish." Under this program, the federal government implements controls to verify that only shellfish that meet food safety and quality standards reach domestic and international markets. [ 6 ] The closures in the Boat Harbour area, entitled "Closure 17.35," was originally put in place some time ago due to recorded fecal chloroform counts exceeding the water quality standards for direct shellfish harvest.

Environment Canada originally identified the suspected source of the pollution as the large number of vessels moored in the waters near the entrance of the harbour. Septic seepage was also identified as a concern from the homes located along the foreshore. [ 7 ] Environment Canada invoked the closure due to the water quality exceeding the fecal chloroform standards.

However, 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, both of which can contaminate shellfish, growing water, and shellfish in the growing water. [ 8 ] The CFIA letter notes as follows: Pathogenic microorganisms and other contaminants can be introduced into shellfish via the growing area water.

Given the above pollution sources, if bivalve molluscan 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 wharves as well as from PAHs, many of which have been found to be carcinogenic or mutagenic; acute or chronic illness from mercury; and illnesses such as typhoid, salmonellosis, and gastroenteritis including norovirus illness, and infectious hepatitis. [ 9 ] The documentary evidence further discloses that hospitalization and even human deaths can occur from some of these diseases and is a consequence from harvesting shellfish from contaminated waters. [ 10 ] The closure of the Boat Harbour area for shellfish harvesting was well marked by the signage. [ 11 ] On the date in question, Fisheries officers arrived at Boat Harbour and observed five individuals, including the Offender, in possession of some 930 pounds of clams packed in the Vexar sacks that had been harvested from the closed area. [ 12 ] The Offender admitted that he was harvesting clams for sale to a third party located in the Comox Valley.

He further admitted that he knew that there was an existing closure that prohibited the harvesting of clams in that area. He was cooperative, and he provided information about the proposed sale to the third party. [ 13 ] The Offender admitted that his portion of the catch that he had harvested equalled 90 pounds. [ 14 ] The entire catch was confiscated by Fisheries officers and released live by returning it back to the beach area.

Circumstances of the Offender [ 15 ] A pre-sentence report containing a Gladue component was ordered, prepared, and completed by probation officer Tammy Kushner of the Nanaimo Community Corrections Office on January 12, 2015. The pre-sentence report is comprehensive, detailed, and useful. [ 16 ] A number of individuals besides the Offender were contacted by Ms.

Kushner, including the Offender's spouse, the Offender's family physician, and Chris Good, an aboriginal fisheries coordinator with the Snuneymuxw First Nation. [ 17 ] According to the pre-sentence report and the submissions made by defence counsel, the Offender is a 52-year-old member of the Snuneymuxw First Nation who lives off reserve in the Nanaimo area. He has not had a close tie with his Band for several years due to his perception of poor treatment of his family by that Native community. [ 18 ] He has been in a stable, committed, and supportive common-law relationship for the last 14 years.

He has a number of children from his previous domestic relationships. [ 19 ] He grew up in a large and supportive family. His father was a residential school survivor. The Offender was not subjected to domestic violence, neglect, abandonment, or abuse during his formative years or in his family home. However, he did witness substance misuse, violence, and poverty that plagued his reserve. [ 20 ] He has completed a grade 10 education while attending school on a reserve.

While living in Calgary, Alberta, he attended upgrading courses but did not attain his high school diploma. [ 21 ] The pre-sentence report described the Offender has having a sporadic employment history consisting of seasonal work: clam digging, baling hay, fisheries, contract work with his Band, and cutting wood for the elders. [ 22 ] He has regularly relied upon income assistance for support. While residing in Calgary, he had full-time employment as a cook and in the construction industry. [ 23 ] Presently, the Offender and his spouse rely on disability benefits and receive a total of $900 per month.

Due to the Offender's medical issues, he is apparently physically unable to work. [ 24 ] The Offender lost an eye at age 18 while chopping wood at the longhouse. The pre-sentence report says the Offender describes his current physical health as poor. He suffers from serious and debilitating gout, Type II diabetes, and arthritis in his hips and legs. He has limited mobility and now requires a cane to assist in his walking.

These medical conditions and peripheral neuropathy (nerve damage) have been confirmed by the Offender's family physician. [ 25 ] The Offender's family physician expresses significant concerns about the ability of the Offender to physically deal well with incarceration owing to the physical limitations arising from his medical conditions and the ability to be treated adequately in the custodial setting. [ 26 ] The Offender admits to a lifelong struggle with alcohol misuse dating back to age 14.

The Offender regards this as one of the primary factors for his numerous convictions, along with negative peer association and influences. The Offender has undergone residential treatment and counselling for his alcohol misuse, which has stabilized over the past decade. [ 27 ] The Offender has a lengthy and unenviable record as an adult Offender dating back to 1980.

His convictions range from and include a number of property offences, thefts, breaches of recognizance, probation orders and provincial parole and failures to appear, violence, four alcohol-related driving convictions, several driving convictions including negligent operation of a motor vehicle, three breaches of the Fish and Game Act in 1998, four convictions in 1997 for offences relating to Fisheries licensing, and a previous conviction for contravening the Fisheries Act and regulations in 2001. [ 28 ] The most relevant convictions to the present charges are the four convictions in 1997 for the Fisheries licensing offences which resulted in an 18-month conditional sentence order, concurrent on all charges, and a six-month jail sentence for the contravention of the Fisheries Act or regulations in 2001.

The circumstances giving rise to these convictions and to the 1998 multiple convictions under the Fish and Game Act were not put before the court. [ 29 ] Ms. Kushner notes substantial gaps in the offending behaviour of the Offender in the last 15 years to present date, especially since the Fisheries Act and regulations convictions in 2001.

During this time, the Offender was convicted of an offence of an over .08 care or control of a motor vehicle in June of 2011 and driving while suspended in January of 2013. [ 30 ] The pre-sentence report states that the Offender appeared to be "very remorseful for his actions, acknowledging the seriousness of his behaviour." The Offender told the author of the pre-sentence report that he had inquired of several Band members in the community and understood it was a safe place to harvest clams notwithstanding the closure. [ 31 ] I understand that this is not being offered as an excuse for the offending behaviour but, rather, as some context for the Offender's anger at himself for his self-described "big mistake", which now puts him back before the court on another Fisheries-related charge after the passage of a number of years since his last related offence. [ 32 ] Of particular interest, the pre-sentence report relates discussions by Ms.

Kushner with Snuneymuxw First Nation fishery coordinator Chris Good. Mr. Good knows the Offender and is aware of his past Fisheries violations and his current offence subject of this sentencing. Mr. Good confirms that the Offender has had past involvement as a contractor with the Band.

[33] The pre-sentence report states, in part, as follows at page 9: Unfortunately, due to Mr. Seward's physical limitations, Mr. Good does not feel the Subject would cope in a community workplacement. He feels the subject would benefit greatly in assisting him in the delivery of educational programming to their bandmembers. This type of programming would focus on aquaculture management, discussions of their treaty rights and appropriate fishingmethods.

The programming would be delivered to all community members with a focus on the youth in their community who arecurrently clam digging and fishing, putting their community at risk. This restorative justice approach is based on respect, and it isdelivered through cultural traditions and customs. Furthermore, Mr. Good feels this arrangement would assist in rebuilding the tiesbetween Mr. Seward and the Snuneymuxw First Nation as the subject holds a great deal of experience and knowledge in this area. Mr.Good feels this type of restorative justice may benefit Mr.

Seward in the long term providing him with support, guidance, and educationinstead of a punitive approach such as incarceration.

Position of Crown on sentencing [34] Crown says that of all the sentencing objectives to be taken into account in this case when imposing just sanctions under s. 718of the Criminal Code, the most important are denunciation of the Offender and specific and general deterrence. [35] Federal Crown says that substantially serious consequences, injuries, and potential human deaths could have resulted had theshellfish harvested by the Offender from a contaminated area for financial gain made their way into the human food supply. [36] Given the gravity of this offence and the past record of the Offender for similar offences, federal Crown submits that aconditional sentence order would not be appropriate based on the application of the criteria laid out by the Supreme Court of Canada inR. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61. [37] 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 Offender's conduct and todetermine similar conduct in the future. [38] Crown says specifically that based upon his past record for Fisheries offences and his past failure to abide by court-orderedconditions and his commission of other public welfare offences, this Offender poses a significant risk to reoffend and that there is agravity of the damage to the community that could ensue should the Offender reoffend.

Case authorities relied upon by Crown [39] As noted at the outset, federal Crown seeks a nine-month custodial sentence. [40] 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). [41] 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). [42] 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, to deterrence in a more positive aspect.

It then goes on to citewith 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. [43] 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. [44] In furtherance of its position of emphasizing deterrence, federal Crown relies upon a number of Fisheries cases involvingVancouver Island First Nations individuals who were repeat offenders under the Fisheries Act and its regulations for harvesting largeamounts of shellfish in a prohibited area.

Those cases are as follows: (

a) R. v. Clyde Alex Johnny, B.C.S.C., Duncan Registry File 12126 (October 28, 1991), an unreported decision which emphasizes thatpublic health was the most important concern. Justice Drake reversed the Provincial Court trial judge who had suspended the passing ofthe sentence and made a probation order for a three-time offender who was apparently engaged in commercial clamming. Thesubstituted sentence imposed by the Supreme Court was for two months of imprisonment in the hope of deterring the accused and others

in the future. (

b) R. v. Kunihiro , an unreported decision of the British Columbia Provincial Court sitting in Victoria in which Hubbard P.C.J. imposed an intermittent 30-day sentence and an intermittent 15-day sentence to be served concurrently on a repeat offender who had just four months previously been fined and placed on a one-year probation for a similar offence. The Offender was found to be participating in a commercial fishery, that is, clam gathering. (

c) R. v. Clyde Alex Johnny , an unreported decision of the Provincial Court, Duncan Registry File No. 16962 (February 13, 1996), in which the accused (who was the same accused in the Drake J. decision noted above) and who was apparently convicted following a trial before Smith P.C.J. had thereby accumulated three prior convictions. The court stressed significant deterrence and concerns about protection of public health. Mr. Johnny was sentenced by Smith P.C.J. to be imprisoned for seven months, and a three-year suspension on his aboriginal fishing licence was imposed. Mr.

Johnny was uncooperative with Fisheries officers and had hidden six bags of contaminated clams which he had gathered as part of a commercial operation and which he apparently had continued to sell to the public following detection and confrontation by the Fisheries officers. (

d) R. v. Martin Patrick Johnny and Kevin Marcel Sylvester , an unreported decision of the Provincial Court, Duncan Registry No. 27361-2-C (November 14, 2007). This case arose from guilty pleas entered by the accused on three counts of a multi count information. These accused had harvested and engaged in a business enterprise of knowingly selling grossly contaminated shellfish to other members of the Native community resulting in the illness of seven persons. Smith P.C.J., citing the paramount importance of protection of the public and the need for significant specific and general deterrence, sentenced Mr.

Johnny, a four-time repeat offender, with his last similar offence some 11 years prior, to two concurrent sentences of nine months each and one concurrent sentence of six months. A conditional sentence was rejected by the court for Mr. Johnny. Mr. Sylvester, who had apparently had a lesser criminal record with only one similar conviction, was sentenced to two concurrent sentences of four months each and a concurrent sentence of two months and was permitted to serve the sentence under a conditional sentence order with 50 hours of community service work.

Each accused was placed on two years of probation and not permitted to fish anywhere in Canada while bound by the probation order and, in Mr. Sylvester's case, by the conditional sentence. (

e) R. v. Dale Gordon Crocker, Leonard Raymond Aleck, Corinna May Daniels, Richard John Aleck, and Dion James Daniels , an unreported decision of the Provincial Court, Duncan Registry No. 19061 (February 20, 1998). Following a trial involving 1,000 to 1,200 pounds of clams harvested from a prohibited area and intended to be disposed of through a commercial opening, first-time offenders Corinna May Daniels, Richard John Aleck, and Dion James Daniels were each sentenced by way of a suspended sentence and one year's probation with 100 hours of community service work. Mr.

Crocker had a prior conviction for a similar offence from 1987, and Leonard Raymond Aleck had a prior conviction for a similar offence in the preceding year. Stressing deterrence and protection of the public against serious health risks from this type of seafood harvesting, Doherty P.C.J. sentenced each to 45 days of imprisonment. Position of the Offender [ 45 ] In

summary, counsel for the Offender says that the Offender has been cooperative with authorities, entered an early guilty plea, is very remorseful, and is described as being "too old and suffering" from significantly broken health which, based upon medical opinion, makes serving actual custodial time highly problematic for the Offender.

He is described as not at risk to reoffend, and he is not a danger to the community. [ 46 ] Therefore, counsel for the Offender says a conditional sentence order between six to nine months provides the necessary deterrence and denunciation for this offence. [ 47 ] Considerable reliance is placed upon the views of Chris Good outlined in the pre-sentence report with respect to the advantages of a restorative justice approach for this Offender. It is submitted that the Offender is most eager to engage in this approach and to fulfil the role suggested by Mr.

Good. [ 48 ] The results of such an approach, says defence counsel, will be a more creative and a more just and more compassioned sentence, while at the same time properly serving the purposes of denunciation and deterrence. [ 49 ] Defence points to the significant 13-year gap in the relevant similar types of convictions subject of this sentencing and the stability that the Offender has gained in his life.

Defence also says that the Offender's common-law spouse will be significantly harmed by a custodial sentence due to the financial loss to her from the Offender's share of social assistance that she relies upon in order to maintain their residence. [ 50 ] Defence also places considerable emphasis on the significant health issues and concerns of the Offender's family physician about the hardship that will be caused by the Offender serving actual custodial time. Case authorities relied upon by the Offender [ 51 ] Defence relies on the sentence received by Mr. Sylvester in the case of R. v.

Martin Patrick Johnny and Kevin Marcel Sylvester noted above. Defence says the Offender in this case is like Mr. Sylvester, who had one prior Fisheries conviction and apparently received three separate sentences to be served concurrently pursuant to a four-month conditional sentence order. [ 52 ] With respect to the Offender's significant health issues, reliance is placed upon the decision of Mr. Justice Romilly in R. v. Ralph , [2014] B.C.J. No. 485 . In R. v. Ralph , Romilly J. notes, at paragraph 42, the Court of Appeal's decision in R. v.

Potts , 2011 BCCA 9 , especially at paragraphs 84 to 89 which summarized the effect of an offender's health or condition on the sentence that should be imposed.

[ 53 ] The Court of Appeal observed that it is relatively rare for health of an offender to be taken into account in sentencing, but indicate that there are cases where it may be relevant. At sentencing, health status is best considered as part of the overall circumstances of the offender rather than just simply serve as a consideration to deduct time from an otherwise appropriate sentence. The Court of Appeal acknowledges that a fit sentence may be reduced on compassion grounds but the reduction must be based on current, clear, and convincing evidence. [ 54 ] In R. v.

Ralph , Romilly J. determined that the significant health issues of the accused in that case amounted to infirmities which, in appropriate circumstances of that case, warranted a different kind of sentence. A conditional sentence was imposed, and the learned justice noted that the principles of denunciation and deterrence must give way, in that case, to principles of compassion, empathy, and clemency (see paragraph 106). [ 55 ] Defence submits that in the present case, the requirements of Proulx are met and hence the conditional sentence order is appropriate in these circumstances.

Legislative framework for offences under the Fisheries Act and regulations [ 56 ]

Section 33 of the Fisheries Act states that no person shall sell, purchase, or possess any fish that has been caught in contravention of the Fisheries Act or the regulations to it. [ 57 ] Shellfish are included under the definition of "fish" found in s. 2, being the definition

section of the Fisheries Act . [ 58 ]

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

a) an offence punishable on

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

b) an indictable offence and liable, for a first offence, to a fine not exceeding five hundred thousand dollars and, for any subsequent offence, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years, or to both. [ 59 ] Crown has proceeded summarily. The Offender has a prior conviction; hence he is subject to a fine not exceeding $100,000 or to a term of imprisonment not exceeding one year, or both.

Purposes, objectives, and principles of sentencing [ 60 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (see R. v. Shoker , 2006 SCC 44 at paragraph 14 , and R. v. Angelillo , 2006 SCC 55 at paragraph 22 ). [ 61 ] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code but also 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 ). [ 62 ] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Criminal Code . The other statutory principles of sentencing are set out in ss. 718.1 and 718.2 . [ 63 ]

Section 718 states: PURPOSE AND PRINCIPLES OF SENTENCING Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the Offender and other persons from committing offences; (

c) to separate Offenders from society, where necessary; (

d) to assist in rehabilitating Offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in Offenders, and acknowledgment of the harm done to victims and to the community. [64]

Section 718.1 provides that any sentence imposed be "proportionate to the gravity of the offence and the degree ofresponsibility of the offender." [65]

Section 718.2(

a) states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence or the Offender." [66]

Section 718.2(

b) requires that "a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances." [67] As noted by Romilly J. in R. v. Ralph (supra), this provision requires an analysis of what is commonly referred to as the rangeof sentence for a specific offence (see paragraph 26). However, because of the proportionality principle and individualized sentences,the parity principle does not preclude disparity where warranted by circumstances. There is no such thing as a uniform sentence for aparticular crime (see R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163). [68]

Section 718.2(

c) requires that "where consecutive sentences are imposed, the combined sentence should not be unduly long orharsh." [69]

Section 718.2(

d) directs that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate inthe circumstances." [70]

Section 718.2(

e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances shouldbe considered for all Offenders, with particular attention to the circumstances of aboriginal offenders." Consideration of aggravating and mitigating factors [71] Based on the undisputed circumstances outlined by federal Crown and the submissions of counsel, there are a number ofimportant and relevant aggravating and mitigating factors that must be considered, which I have outlined below. Aggravating factors [72] Those aggravating factors are as follows: (

a) the Offender's prior criminal history and his prior convictions for Fisheries licensing offences and his conviction for violating theFisheries Act or regulations; (

b) the significant potential harm to the community and possible injury or death to a member of the unsuspecting public who placestrust in Canadian food safety; (

c) the Offender's financial motive for harvesting clams for sale to a third party rather than for his personal use or cultural use. Mitigating factors [73] Those mitigating factors are as follows: (

a) the Offender's relatively early guilty plea; (

b) the Offender's genuine and early remorse and insightful acknowledgement of the seriousness of his behaviour; (

c) the Offender's very significant amount of immediate cooperation with the Fisheries officers at the time of rest and in their furtherinvestigation of the third party buyer.

Analysis [74] Having regard to the objects and principles of sentencing and of all of the circumstances surrounding this event, including theaggravating and mitigating factors and the personal circumstances of the Offender, and the case authorities to which I have been referred,I am of the view that a fit and proper sentence in this case falls in the range of between six to eight months. [75] In cases of this nature, general and specific deterrence are very important. I accept Crown's submission that in this case there isa public welfare offence as described in R. v. Cotton Felts Ltd. (supra).

In cases of this nature, there is a very high risk of harm to anunsuspecting public and the serious undermining of public confidence in food safety if contaminated shellfish find their way into thefood distribution system. [76] In this case, the Offender, as a harvester of the contaminated shellfish, is clearly participating at the earliest stages of whatmight very well be a chain of individuals who are knowingly dealing in a potentially dangerous seafood product.

In my view, the directselling of shellfish known by the seller to be potentially contaminated, or shellfish known to be actually contaminated, to the generalpublic may be more aggravating than the initial harvesting of those shellfish. In my view, the seller may be considered moreblameworthy. The seller knows that the general public is being put at risk. That is not to say that the harvester, in such circumstances,

can claim to be blameless. There may be situations where the harvester is clearly not aware of the distribution plan to make these types of shellfish available for human consumption. There are other situations where it is evident to the harvester that somebody will be making these types of shellfish available for human consumption.

Hence there will be a scale of blameworthiness that must be considered in imposing any sentence. [ 77 ] In examining the cases relied upon by Crown, several of them are situations where the offenders had not only gathered the clams but also were responsible for selling them directly to the general public. Hence there is a higher level of blameworthiness. [ 78 ] There is nothing to suggest that the Offender here thought that the distribution plan by the third party buyer did not include distribution for human consumption.

But what is noteworthy is that once confronted, the Offender was cooperative in his disclosure about the third party buyer to the investigating Fisheries officers. Presumably, this assisted them in preventing or controlling future distribution of contaminated or potentially contaminated seafood to the general public. Hence, the level of the Offender's blameworthiness in this case is somewhat reduced or mitigated. [ 79 ] In determining what is a fit sentence in this type of case, I am mindful of the more positive aspect of deterrence referred to and applied in Cotton Felts .

In my view, it is necessary to craft a sentence that emphasizes community disapproval of the act and brandishes it as reprehensible. I am also persuaded that it is important that the sentence has a moral and educative effect and thereby affects and conditions the attitude of the public in such a fashion so that they will not likely commit such

an act. [ 80 ] The restorative justice approach for the Offender being suggested by Mr. Good, the Snuneymuxw First Nation aboriginal fisheries coordinator, provides just such an opportunity to affect and condition the attitude of the Offender and to affect and condition the attitude of his Band members who will have the opportunity to experience that positive aspect of deterrence through education.

Hopefully, this change will extend beyond the Band to the larger general public and specifically those elements of it who might be tempted to engage in some aspect of this offending behaviour or even at the level of knowingly purchasing illegally caught seafood products that are potentially contaminated and harmful. Conditional sentences [ 81 ] I now turn to consider whether a conditional sentence order is available or suitable in this case. The requirements for and the availability of a conditional sentence [ 82 ]

Section 742.1 of the Criminal Code lists the requirements that must be met before a judge imposes a conditional sentence: 1. The sentence imposed pursuant to a conditional sentence order must be less than two years. 2. A conditional sentence order may be made where the court is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2. 3. A conditional sentence order can only be made where the enactment does not prescribe a minimum term of imprisonment. 4.

A conditional sentence order is not available for an offence prosecuted by indictment for which the maximum term is 14 years or life. 5. A conditional sentence order is also not available for a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more. 6.

A conditional sentence order is also not available for an offence prosecuted by indictment and punishable by a maximum of 10 years' imprisonment in the circumstances set out in subsection (e) , that is, offences that resulted in bodily harm or involved the import, export, trafficking, or production of drugs or involved the use of a weapon. 7. A conditional sentence order is also not available for the offences listed in subsection (

f) prosecuted by way of indictment. Analysis [ 83 ] The first condition is met since I have come to a conclusion about the range of sentence suitable in this case and given the fact that the statutory mandated maximum sentence under s. 78(

a) of the Act is not to exceed one year. [ 84 ] None of the statutory factors listed in s. 742.1 and described above in items 3 to 7 inclusive prevent the use of a conditional sentence in this matter. [ 85 ] That leads me to next consider whether, as directed by s. 742.1 (

a) of the Criminal Code , I am satisfied that service of the sentence in the community, first, would not endanger the safety of the community and, second, would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . [ 86 ] The Supreme Court of Canada in R. v. Proulx considered and set out the principles to apply when considering the imposition of a conditional sentence order. Notwithstanding that Proulx was decided prior to the November 19, 2012, amendments to s. 742.1 , the principles still apply. [ 87 ] Some of those principles that are particularly relevant to this case are as follows: (

a) A conditional sentence is intended to address both punitive and rehabilitative sentencing objectives and should generally include

punitive conditions that restrict the offender's liberty. (b) "Safety of the community" not being endangered is merely one of the statutory prerequisites for imposing a conditional sentence and is not the primary consideration. The threat of the specific offender must be considered. A sentencing judge must consider the risk of the Offender reoffending and the gravity of the damage that could ensue. That risk should be assessed in light of conditions that can be attached 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 presumption that conditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determining whether 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 are satisfied, but there is no presumption in favour of a conditional sentence. (

e) A conditional sentence can provide a significant amount of denunciation even in cases in which retroactive objectives are of lesser importance, particularly when onerous conditions are imposed and the term 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 wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there may be circumstances where deterrence will warrant incarceration. (

g) When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, a conditional 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. (

i) Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the Offender and acknowledgement of the harm done to the victim and the community. (

j) Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. (

k) The more serious the offence, the longer and more onerous the conditional sentence should be. [ 88 ] I am mindful that a conditional sentence is discretionary. Meeting the statutory prerequisites of s. 742.1 does not entitle the Offender to a conditional sentence. However, when these have been met, given the principle of restraint in using imprisonment and the necessity to consider all available sanctions as set out in ss. 718.2 (

d) and 718.2 (e) , failure to consider a conditional sentence may constitute a reversible error (see Proulx at paragraphs 82 to 85, 90, 116, 121 to 122, and 123 to 126 ). [ 89 ] I must be satisfied that serving the sentence in the community would not endanger the safety of the community (see s. 742.1 (a) ).

It is the risk posed by this particular Offender that I must consider when answering this question and not the broader risk of whether a conditional sentence would endanger the safety of the community by providing insufficient deterrence or undermining the general respect for the law. [ 90 ] Therefore, I must take into account the risk of this Offender reoffending and the gravity of the damage in the event of re- offence. [ 91 ] It is the risk of any criminal activity by this Offender that I must consider and not just the risk of physical or psychological harm to individuals.

Analysis [ 92 ] At this stage in his life, and given the change in his circumstances that are noted in the pre-sentence report, I am of the view that the Offender is not a danger to the safety of the community and not a danger to reoffend. In saying so, I am mindful of his 2011 over .08 alcohol-related driving offence and his driving while under suspension in 2013.

Except for his other Fisheries and Fish and Game Act convictions, the other offences in his criminal record either lack relevance to the present charges or are quite dated. [ 93 ] Notwithstanding previous breaches of court orders, I view the Offender as being willing and able at this time to abide by the terms of a conditional sentence order. [ 94 ] With respect to his prior Fisheries offences and his Fish and Game Act convictions, I am not particularly concerned that they presently represent an indication of safety concerns for the public or a risk to reoffend.

The Offender is now insightful as to the seriousness and the potential harm to the community and the potential consequences of his actions giving rise to the existing offence before me. He is genuinely remorseful for it. [ 95 ] The Offender's present health is very problematic and will continue to be for the foreseeable future. Incarceration will be unduly harsh for him. As noted by Romilly J. in R. v. Ralph ( supra ), in appropriate circumstances an accused's infirmity may warrant a different kind of sentence.

In my view, that is a factor in favour of a conditional sentence order. [ 96 ] I am also mindful of the undue hardship that may be rendered on the Offender's spouse if the Offender is incarcerated.

Conclusion [ 97 ] Having considered all of the circumstances in this matter and the principles and objectives of sentencing set out in the Code , and the guidance in the context provided by Proulx , I am satisfied that a conditional sentence order should be made in this case. Sentence imposed [ 98 ] Would you stand, Mr. Seward, please? [ 99 ] Mr.

Seward is sentenced to a conditional sentence order of nine months, subject to the following terms. [ 100 ] You shall keep the peace and be of good behaviour. [ 101 ] You shall appear before the court when required to do so by the court. [ 102 ] You shall report in person to a conditional sentence supervisor no later than 1 p.m. on Thursday, March 18, 2015, at the Nanaimo probation office, Nanaimo, British Columbia, at the address to be provided to you, and you shall thereafter report as and when directed by your supervisor and in the manner directed by your supervisor. [ 103 ] You shall remain within British Columbia unless written permission to go outside the jurisdiction is obtained from the court or the supervisor. [ 104 ] You shall notify the court or your supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [ 105 ] On first reporting to the supervisor, you shall inform him or her of your present residential address and phone number, if any.

You shall not change your address or your phone number, if any, at any time without first notifying the supervisor. [ 106 ] During the first six months of your sentence, you shall obey a curfew by being inside your residence between the hours of 9 p.m. and 6 a.m. each day except as follows: (

a) with the written consent of the supervisor. Such consent is to be given, however, only for compelling personal, family, or employment reasons; or (

b) when travelling directly to or returning directly from your place of employment or while in the course of such employment or while completing your community service hours. You shall provide your supervisor with written details of your employment, including hours of work and your

schedule for completing community service hours, if requested to do so; or (

c) when travelling directly to or returning directly from an educational institution at which you are enrolled or while in the course of classes or extracurricular activities approved of in advance by the supervisor; or (

d) in the company of a person approved in advance in writing by the supervisor. [ 107 ] You shall present yourself at the door to your residence when the supervisor or any peace officer attends there for the purpose of determining your compliance with the curfew conditions of this order. [ 108 ] You shall respond personally and immediately to the telephone (if any) when a peace officer or the supervisor makes a phone call to your residence for the purpose of determining your compliance with the curfew condition of this order. [ 109 ] You shall not possess or consume any alcohol or controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a licensed physician. [ 110 ] You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or nightclub. [ 111 ] Under the direction and the supervision of Chris Good, the aboriginal fisheries coordinator at Snuneymuxw First Nation, and to the satisfaction of Chris Good and to your supervisor, you shall successfully complete 130 hours of community work, which shall be completed no later than eight months from the date of this order.

No probation order or ancillary orders [ 112 ] The Crown does not seek a probation order or any ancillary orders, and none will be ordered. Victim surcharge [ 113 ] The victim surcharge does not apply to this offence. [ 114 ] That concludes my reasons for judgment. [ 115 ] I am going to pause for a moment and ask whether or not there are any further submissions that counsel wishes to make with respect to the terms of the conditional sentence order. [ 116 ] MS. SIMPSON: Your Honour, I have two things. Crown was seeking forfeiture -- [ 117 ] MR. CHURCHILL: May my client sit?

[ 118 ] THE COURT: Please. [ 119 ] MR. CHURCHILL: Thank you. [ 120 ] MS. SIMPSON: Your Honour, Crown was seeking forfeiture of two bags, Vexar sacks. [ 121 ] THE COURT: I thought that had already taken place, but -- [ 122 ] MS. SIMPSON: Oh, I apologize. [ 123 ] THE COURT: Well, if it has not, I will make the order. So that is a forfeiture order with the -- [ 124 ] MS. SIMPSON: Vexar sacks. [ 125 ] THE COURT: And how many were there? [ 126 ] MS. SIMPSON: There were two. [ 127 ] THE COURT: Two? I will make that order. [ 128 ] THE CLERK: How do you spell that, please? [ 129 ] MS.

SIMPSON: V-e-x-a-r. [ 130 ] THE CLERK: Thank you. [ 131 ] MS. SIMPSON: And Your Honour, Crown would also ask you to consider that as part of the conditional sentence order that Mr. Seward not possess any bivalve mollusks or any gear suitable for harvesting bivalve mollusks, such as buckets or nets, and that could be the buckets or nets within 25 metres of the Pacific Ocean. [SUBMISSIONS] [ 132 ] THE COURT: All right.

I won't make any further restrictions or limitations on either the possession of mollusks or of any equipment that might be regarded as being suitable for the harvesting of those mollusks, given the fact that Mr. Seward may very well be required to do those things as part and parcel of the discharge of the community service hours which I have made part of his conditional sentence order. [ 133 ] MS. SIMPSON: Thank you, Your Honour. And just to clarify, you said there was a curfew from 9 p.m. to 6 a.m.

Was that for the whole of the conditional sentence order? [ 134 ] THE COURT: I think I said during the first six months. [ 135 ] MS. SIMPSON: Six months? [ 136 ] MR. CHURCHILL: Yes, you did, Your Honour. [ 137 ] MS. SIMPSON: Thank you. [ 138 ] THE CLERK: And Count 1, Your Honour? [ 139 ] MS. SIMPSON: Crown would direct a stay of proceedings regarding only Mr. Seward for Count 1. [ 140 ] THE COURT: Thank you. That stay is so recorded. [ 141 ] MR. CHURCHILL: Thank you, Your Honour, for your very thorough consideration of this matter. [ 142 ] MS. SIMPSON: Thank you, Your Honour. [ 143 ] MR. CHURCHILL: I know Mr.

Seward appreciates that. [ 144 ] THE COURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)