R. v. Bob Date:, 2015 BCPC 402

Citation: R. v. Bob Date: 20151224 2015 BCPC 0402 File No: 77751-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. OWEN JOSEPH BOB ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: I. McFadgen Counsel for the Defendant: P.A. Gibb Place of Hearing: Nanaimo , B.C. Dates of Hearing: December 21, 24, 2015 Date of Judgment: December 24, 2015

Introduction [ 1 ] THE COURT (orally): Owen Joseph Bob (the "Offender") being of First Nations heritage and a member of the Snaw-Naw-As First Nation (also commonly called the "Nanoose First Nation") has entered guilty pleas to committing two offences under s. 78(

a) of the Fisheries Act as follows. [ 2 ] On Count 1, it is alleged that he and Ian Lance Point and Patrick Sampson and James Ollie Wyse, on or about the 17th day of February, 2013, at or near the District of Lantzville, in the Province of British Columbia, did unlawfully fish for or catch and retain bivalve molluscs, namely, clams, in a prohibited area contrary to s. 3(2) of the Management of Contaminated Fisheries Regulations. [ 3 ] On Count 2, it is alleged that Mr.

Bob alone, on or about the 17th of February 2013, at the same location, in the Province of British Columbia, carrying out an activity under the authority of Contaminated Shellfish Licence 2012, did fail to comply with a condition of that licence, namely, he did not notify the Department of Fisheries and Oceans of a depuration dig contrary to s. 22(7) of the Fishery (General) Regulations. [ 4 ] There is a Count 3 on the Information which Crown has indicated that, at the conclusion of the sentencing, they will be entering a stay of proceedings.

The allegation on Count 3 is a similar offence of failing to comply with the same Contaminated Shellfish Licence by failing to post depuration dig signs, and that is contrary to s. 22(7) of the Fishery (General) Regulations. [ 5 ] Having entered pleas of guilty to the offences outlined on Count 1 and Count 2, the Offender has admitted the essential elements of each of the offences. In the course of this sentencing hearing, I heard submissions on behalf of both the Federal Crown as well as on behalf of Mr. Bob. My decision will be based upon those facts which are not in dispute.

No evidence was called by either the Crown or the defence. Initially there were factual issues upon which there was not significant agreement; having heard further submissions this morning, the issues that may have been in dispute have been significantly clarified.

Facts Circumstances Surrounding the Offences [ 6 ] According to the circumstances outlined by Federal Crown, on February 17th, 2013, the Department of Fisheries received a report of three individuals who were in the process of harvesting clams on a beach area in and around the Lantzville area and, as I understand it, not too far from the traditional lands of the Nanoose First Nation. [ 7 ] Three Fisheries officers were dispatched to the location. The area was marked with signs indicating that there was an existing prohibition for harvesting.

These signs were referred to in submissions as the "Canadian Shellfish Sanitation Program" signs. The signs were clearly marked. They indicated that there was a closure in effect. The signs were in a location beside the vehicles owned by Mr. Wyse and by Mr. Point. [ 8 ] As it turns out, the three individuals on the beach at that time were, in fact, Mr. Point, Mr. Sampson, and Mr. Wyse. Mr. Bob was not present.

The Fisheries officers spoke to the three individuals and were informed that they were harvesting clams pursuant to a depuration licence. [ 9 ] It is common ground that the depuration licence referred to is a licence that had been issued for a commercial fishing known as Contaminated Shellfish Licence 2012. That licence was issued to Evening Cove Oysters Processing Ltd., the principal of which is a Mr. Andrew Dryden, and the license was noted to be issued in conjunction with Nanoose First Nation. The named contact person with respect to this particular licence apparently is Mr.

Brent Edwards who is a councillor with Nanoose First Nation and holds the position as resource manager for that particular First Nation. [ 10 ] The Department of Fisheries (the "DFO") checked and found out that the requirements for a depuration dig pursuant to the licence, in fact, had not been complied with insofar as no notice had been served on the Department of Fisheries of any intended dig or harvest.

The area in which the three individuals were digging was closed as a result of contamination of the shellfish in that particular area. [ 11 ] Notwithstanding that no notice had been served, the individuals who were present at this time contended that they had received instructions from their employer, Mr. Bob, to commence a dig on the site of the clam beds.

The indication was that they were getting an early start because of the fact that a harvest of some 8,000 pounds of clams was going to be required. [ 12 ] The investigating officers from Department of Fisheries contacted Andrew Dryden, the principal of Evening Cove Oysters. He confirmed to them that no notice had been served by his company on Department of Fisheries with respect to a dig pursuant to the licence. He further indicated that he was unaware that any dig was taking place at that particular time.

Accordingly, he confirmed in the minds of the Fisheries officers that an essential requirement of the dig, namely, the service of notice, had not been complied with. [ 13 ] The area in question is a prohibited area and so posted by the signage, previously referred to above. It is common ground that the area is subject of a prohibition order made on November 18th, 2011, by the Department of Fisheries and Oceans and that the order that applies is Contaminated Fisheries Prohibition Order PSN2011-290.

That prohibition order was made pursuant to s. 3(1) of the Management of Contaminated Fisheries Regulation. [ 14 ] As a result of the investigation of the three individuals found on the harvest area on February 17th, 2013, the Fisheries officers also determined that there was a failure to comply with other conditions contained within the licence, namely, the possession of a copy of the licence during the harvest and also the failure to post signs as required under the terms of the licence which signs were to indicate as follows: "Harvesting from a contaminated area under licence for decontamination purposes." This signage apparently was to prevent others from assuming that the area was safe for harvesting when they observed others engaged in that activity.

[ 15 ] As a result of the breaches, the charges were laid against the Offender, Mr. Bob, as well as the other co-accused. [ 16 ] As noted above, the licence was issued to both Evening Cove Oysters Processing Ltd. and to the Nanoose First Nation. It is common ground that the Offender in this case stood in the position of a sub lessee under the terms of that licence and that such arrangements had been made between the Offender and with the Nanoose First Nation.

It is also common ground that there is no formal documentation to evidence that arrangement, but it is accepted that it was the responsibility of the Offender to comply with the provisions of the licence. The individuals in question that were on the beach harvest area were, in fact, employees or agents of the Offender and had been directed by the Offender to complete the dig. [ 17 ] The Offender takes responsibility for these instructions that were given to the other co-accused.

He admits that he had not undertaken compliance with several of the requirements contained in the licence which have given rise to the charges at hand. Crown describes the dig that was taking place without compliance with the provisions of the licence to be in the nature of a "rogue" activity that was being directed by the Offender. [ 18 ] The terms of the licence require several conditions to be met. It is significant that the Offender is named as one of three harvest supervisors under the terms of the licence.

Also named in the licence besides the licensees, Evening Cove Oysters Processing Ltd. and Nanoose First Nation, are a total of 11 individuals who are described as licenced operators. One of those individuals appears to be the same James Ollie Wyse who is one of the co-accused. As far as the harvest supervisors are concerned, Ian Lance Point and Owen Joseph Bob are two of three harvest supervisors, the other being a Donald Joel Sampson. [ 19 ] The licence contains a number of

definitions which are relevant to dealing with the matters before me. Under the terms of the licence, the term "Depuration" or "Controlled Purification" is defined as meaning, and I quote: The process of using a controlled, aquatic environment to reduce the level of bacteria and viruses in live shellfish. [ 20 ] The term "depuration plant" or "depuration facility" is defined as meaning: A facility of one or more depuration units.

A depuration unit is a tank or series of tanks supplied by a single process water system. [ 21 ] The term "harvest supervisor" means as follows [as read in]: The person present at the time of shellfish fishing who is responsible for carrying a copy of the contaminated shellfish fishing licence and conditions and is in charge of the harvesting operations at the site. [ 22 ] The term, "wet storage" is also defined.

It means: The temporary storage of "live" shellfish from approved sources, intended for marketing, in containers or floats in natural bodies of "seawater" or in tanks containing natural or synthetic seawater or otherwise meeting the requirements of the Canadian Food Inspection Agency. [ 23 ] The licence also sets out the requirements for notification to be provided to the Department of Fisheries and Oceans.

This is referred to as a "Harvest Notification Report." The requirement is that the Harvest Notification Report is to be sent to various offices of the Department of Fisheries in writing at least a minimum of 24 hours prior to the commencement of the harvest. [ 24 ] What is required in that particular report is as follows, and quoting from page 7 of the licence [as read in]: i. name of licence holder; ii. Contaminated Shellfish Licence Number; iii. harvest site location; iv.

Pacific Fishery Management Area number; v. the total allowable catch allocated for the site; vi. total allowable catch harvested from the site to date; vii. the remaining total allowable catch on the current licence amendment; viii. number of licenced operators who will be participating; ix. estimated time of delivery to the depuration facility or authorized wet storage location; and x. estimated time of loading into depuration tanks. [ 25 ] The licence was issued on February 7th, 2013.

By way of a coversheet dated that same date and directed to Andrew Dryden on behalf of Evening Cove Oysters Processing Ltd. and Brent Edwards on behalf of the Snaw-Naw-As First Nation there is a message as follows [as read in]: Please find attached your licence amendment for CS12 2013 for the tenure at Eby Road, East CLF1411209, and the portion of the tenure at Maelstrom Cove, CLF1411203. That is in the closure. Water quality records have been reviewed and Environment Canada has confirmed the status of these areas meets the criteria for depuration. The original will follow in the mail.

Please ensure that a copy of the licence and licence amendment are on the beach during the harvest and that they are carried when transporting the harvest product. There are conditions that require signs and labelling of sacks that should be carefully followed, as well.

[ 26 ] It is common ground that the general procedure that is followed when operating under this licence is as follows: first of all, it requires the Harvest Notification Report to be sent. Following that, the digging of clams in accordance with the terms of the licence proceeds. Those clams are sacked and tagged properly in accordance with the requirements of the licence and then the bags or sacks of clams are taken by boat, under the control of Evening Cove Oysters, to the dock outside just adjacent to the Nanoose First Nation lands where they are to be picked up therefrom for transport to the depuration plant.

It is not disputed that the depuration process is usually arranged by Evening Cove Oysters. [ 27 ] As previously noted in this case, the required notification for a harvest dig on the offence date had not been sent. Hence, the first important condition of the licence was not being complied with. The circumstances also indicate that subsequent to the offence date that there was a required Harvest Notification Report made to DFO for a dig which was to take place on February 22nd and February 23rd of 2013.

It is also indicated by Crown and not disputed by defence that there had been a notice sent out to permit a harvest to occur on February 9th, 10th, and 11th. [ 28 ] The notification pursuant to the Harvest Notification Report is the obligation of the licence holder. In fact, it is common ground that the issuance of the actual notice was undertaken by Evening Cove Oysters as part of their responsibility, but that notification was done in consultation with the Offender.

In this case, no consultation had taken place and, accordingly, no notice had been served. [ 29 ] There is no suggestion that there was any attempt on the part of the Offender in this case to be trying to avoid the depuration process, that is to sell untreated shellfish to the general public.

Although Crown does not make that assertion, the existence of a lack of such circumstance is proffered by defence in its submissions. [ 30 ] The Federal Crown and defence also do not take issue with the fact that there was a remunerative aspect for the people who were engaged in the harvest, that is, that they were receiving compensation, presumably, from Mr. Bob, and further it is also not disputed that Mr.

Bob himself fulfills a role in terms of the harvesting that results in him receiving financial remuneration. [ 31 ] The arrangements between the Nanoose First Nation and the Offender appear to have been in place for some three years. It is asserted on behalf of the Offender and not disputed by Crown that during the course of that three-year relationship that Mr. Bob never had in his possession a copy of the licence.

The fact that he was not in possession of a copy of the licence would indicate that he had not been in compliance for some time with the requirement to have a copy of the licence on his person or in the possession of another individual undertaking a harvest pursuant to the licence when such activity was being undertaken. [ 32 ] Defence further asserts, and it is not contradicted by Federal Crown, that at the time that the harvest was taking place that the only three individuals on the beach area were the co-accused other than Mr. Bob.

It is also not a disputed fact that there was no boat available in order to transport any of the sacks of clams over to the Nanoose First Nation dock. In fact, according to the statement made by one of the co-accused, what was intended was to dig the clams and maintain them in wet storage, as that term apparently is used under the licence, until such time as the formal dig took place. [ 33 ] There is a suggestion made by the Offender to the effect that what was actually taking place at the time that the Fisheries officers came to the site was what I can characterize as an exploratory dig.

The assertion made by the Offender was that he was uncertain as to the full extent of the tenure in which the harvest was to be conducted. Therefore he had instructed his employees to dig some test sites in order to determine the availability of clams and their sufficiency to fulfill the necessary requirements and to provide the required amount to be harvested and then to undergo the depuration procedure.

Notwithstanding that assertion, there is no issue that the clam digging that was taking place was contrary to the terms of the licence and therefore also contrary to the terms of the Management of Contaminated Fisheries Regulations. [ 34 ] There is some issue with respect to the amount that was the subject of the harvest that took place on the offence date. The Fisheries officers indicated to Federal Crown that they had confiscated 27 bags of clams. An exact count of the number of clams was unknown. However, there was an estimate that 10 of the bags contained something around 50 pounds of clams.

Hence, the supposition on the part of the Federal Crown and the Department of Fisheries is that there may have been something around 1,000 pounds of clams that had been harvested on offence the date in question. [ 35 ] That is not accepted by the Offender. He indicates that the usual number of clams that would be in any bag at any given time would be closer to about 20 pounds.

Hence, the amount of illegally harvested clams would have been substantially less than had been estimated by the Department of Fisheries. [ 36 ] One explanation that was proffered by the Offender with respect to the timing of the harvest was that the date that had originally been selected for a harvest to occur was to have been on the day following the charge date. It was further contended by the Offender to the Fisheries officers that the planned harvest date had been put back farther to the following Wednesday and then to the following Friday.

As noted earlier, there was eventually a notice served and a dig did occur on February 22 and 23, 2013. Statutory Provisions for Offences and Defence of Due Diligence Under the Fisheries Act [ 37 ] Under the heading of "Offence and Punishment," the following sections of the Fisheries Act are applicable to this case: 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 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. ...

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. ... 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. [38] In this case, Crown has proceeded summarily and, as noted below, the Offender does not have any prior offences under theFisheries Act. [39] The offences under the Act are strict liability offences. The charge is made out simply by proving the actus reus which is thensubject only to the limited statutory defence provided in the Act. It is not necessary for Crown to prove the mental element or intent tocommit the offence. Our Court of Appeal in R. v. F.A.S.

Seafood Producers Ltd., [2000] B.C.J. No. 1625, noted the following about thedue diligence defence. Commencing at paragraph 24, the court says 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.) in which the application of s. 78.3 of the Act was considered in an appeal from conviction for landingundersized lobsters. In that case, the accused fished for lobsters with a helper. He delegated to his helper responsibility for measuringthe size of the lobsters caught. The accused said he had no knowledge, and there was no reason for him to have knowledge and therewas no reason for him to have knowledge, that any of the lobsters were undersized. One of the issues was whether the trial judge erredin finding that Cameron had not established the 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: ... [see as noted above] Applicable Statutory Provisions With Respect to Count 1 Management of Contaminated Fisheries Regulations [40] It is noteworthy that the term "contaminated" is defined in the Management of Contaminated Fisheries Regulation in thefollowing terms, reading in: ... with respect to fish, means fish in or on which bacteria, toxins, chemical compounds or other substances are present to a degree thatmay constitute a danger to public health ... [41]

Section 3 of the Regulations is headed, "Prohibition Order." It provides as follows: 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

(1) Subject to subsection (2), on application and payment by a person of the appropriate fee set out in the table to this subsection, the Minister may issue the person a licence authorizing the person and any other person named in the licence to fish in any area in respect of which an order is issued under subsection 3(1), for any species specified in that order. ...

(2) Where a person wishes to obtain a licence to fish for food purposes, the person shall submit to the Minister a decontamination plan 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 scientific investigation; (

b) fish under a licence to fish for food purposes shall handle the fish except in accordance with the decontamination plan submitted under 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.

Applicable Statutory Licensing Provisions With Respect to Count 2 [ 42 ] Section 22(1) of the Fishery (General) Regulation reads as follows: Conditions of Licences 22(1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters: ... [ 43 ] Thereafter a lengthy number of specific conditions are set forth prior to subsections (2) to (7) inclusive as follows:

(2) The Minister may, for the purposes of the conservation and protection of fish, amend the conditions of a licence.

(3) A notice of any amendment referred to in subsection (2) shall be

a) sent to the licence holder by registered mail; or

b) personally delivered to the licence holder by a fishery officer.

(4) An amendment referred to in subsection (2) is effective from the time the licence holder receives the notice referred to in subsection (3).

(5) A notice referred to in subsection (3) forms part of the licence to which it relates and the licence holder shall, on receipt of such a notice, attach the notice to the licence.

(6) Compliance with the Act and the regulations made under the Act is a condition of every licence.

(7) No person carrying out any activity under the authority of a licence shall contravene or fail to comply with any condition of the licence. [ 44 ] As noted above, the provisions breached for which the Offender has been charged on Count 2 are clearly set out in the terms of the licence held by Evening Cove Oysters and Nanoose First Nation. Sentencing Principles [ 45 ] The authorities are clear that 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 ). [ 46 ] 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 ). [ 47 ] 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 s. 718.1 and 718.2 .

Section 718 states: Purpose and Principles of Sentencing Purpose 718 The fundamental purpose of sentencing is to protect society and 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 [officer] [sic, 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 or to the community. [ 48 ]

Section 718.1 provides that any sentence imposed be ... proportionate to the gravity of the offence and the degree of the responsibility of the offender. [ 49 ]

Section 718.2(

a) states that a: ... sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ... [ 50 ]

Section 718.2(

b) requires that: ... a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ... [ 51 ]

Section 718.2(

c) requires that: ... where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh ... [ 52 ]

Section 718.2(

d) directs that: ... an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances ... [ 53 ]

Section 718.2(

e) as it read at the time of the commission of these offences provides as follows: ... all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Circumstances of the Offender [ 54 ] I have the benefit of a presentence report prepared in connection with the Offender. The report was prepared by Jade Seabrook, a probation officer with the Nanaimo Probation office. The date of the report is November 3rd, 2015. The report confirms some of the important background of Owen Bob.

As indicated above, he is of First Nations descent. His parents are from different Bands. He identifies with the Nanoose First Nation. [ 55 ] He was raised in a household where he was witness to alcohol use and abuse within that home. He indicates that he is of the belief that at least one of his parents may be a residential school survivor. [ 56 ] He has been in a long-term relationship with his common spouse, Charlene Dawson. They have two children of their own, aged 12 and nine, and a stepdaughter for Mr. Bob, aged 20, which child he considers to be his own.

He described to the probation officer that his relationship was stable and supportive and absent of any alcohol use. [ 57 ] The report also sets out that Mr. Bob has a prior court history. In April 8th, 1999, he was convicted of driving while his ability was impaired for which he received a $300 fine and a licence suspension. More recently, on November 9, 2010, he was convicted on an assault charge for which he received a six-month probation order. I understand that this assault arose out of a domestic dispute. [ 58 ] Mr.

Bob describes himself as a sole proprietor of a business operation, namely, the harvesting of shellfish which has been described above. He contracts to undertake this harvesting and employs others to do the work. He appears to be able to earn a good living from that activity, earning between $2,000 and $8,000 a month. [ 59 ] The presentence report contains a description of the attitude and receptiveness of Mr. Bob to this offence. The general thrust is that Mr. Bob believes that he is not a bad person, but simply made a mistake with respect to the offences for which he has been charged.

He professes to have a lack of knowledge about the terms and conditions of the licence under which he was operating. He further indicated that he has taken some steps in order to familiarize himself with the requirements of Department of Fisheries and, in particular, as I understand it, with respect to the licence under which he operates and has continued to operate for some time. [ 60 ] He identifies as being connected to and culturally participating in community celebrations and cultural activities through the Nanoose First Nation.

Interestingly, although he is a First Nations offender, he did not want the court to view his circumstances through the lens of an Aboriginal offender. Rather he indicated that his circumstances should be viewed through the lens of what actually took place here. That is described by him in the report as a "mistake of direction in business." There is a short Gladue component to the presentence report which provides background on the Nanoose First Nation and also another First Nation to which Mr. Bob has a connection. [ 61 ] There is a suggestion in the report that Mr.

Bob will follow any conditions imposed by the court including a payment of fines. Position of Crown on Sentencing [ 62 ] In

summary the Crown's sentencing position is that the nature of these offences is such that deterrence and denunciation are the essential priorities for sentencing. Accordingly, the imposition of significant fines is suggested, at $2,500 on each count for a total of

$5,000. [63] In making that argument, Crown relies on the decision in R. v. Cotton Felts Ltd., (ON CA), [1982] O.J. No.178 (Ont. C.A.).

That case is cited in support of the proposition that offences under the Fisheries Act and its Regulations are publicwelfare offences and that those types of offences, as described in Cotton Felts, range widely from safety and consumer protection toecological conservation and are accepted as essential in the public interest to ensure standards of conduct, performance, and reliability tomake life tolerable for all (see paragraph 19). [64] Crown says that the Cotton Felts case supports the concept that deterrence is at the heart of public welfare offences and thesentences that arise therefrom (see paragraph 19).

At paragraph 23, Cotton Felts says that in these types of offences, "Deterrence is notto be taken only in its usual negative connotation of achieving compliance by threat of punishment," but rather the court referred withapproval "to deterrence in a more positive aspect." [65] It then goes on to cite with approval R. v. Roussy, [1977] O.J. No. 1208, a case involved a driving offences 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 commit such

an act. [66] The Court of Appeal in Cotton Felts then concluded at the end of paragraph 23 by saying the following: 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. [67] It is the Crown's sentencing position that there is a significant health hazard to the general public if contaminated fish becomepart of the food chain.

In that regard, Crown has placed before the court what is described as an impact statement, entitled"Consequences of Harvesting Shellfish from Contaminated Waters." This was prepared by an aquaculture and mollusc and shellfishspecialist named Klaus, Schallié. [68] In it, the impact statement describes the number of significant diseases that can occur from the consumption of affected andcontaminated shellfish.

These are categorized into a number of different types of diseases and statistics are given with respect to thenumber of people who have been seriously impacted by and, in some instances, have died as a result of having consumed contaminatedshellfish. [69] The impact statement also specifies that there is an economic importance to the shellfish industry in British Columbia.

Fromthat, 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 shellfishwithin the community. [70] It is also important to note, as is cited in the impact statement, that Canada has what is known as the Canadian ShellfishSanitation Program (CSSP). The impact statement indicates as follows, and I quote [as read in]: The purpose of this program is to minimize the risk of illness from consumption of bivalve shellfish.

In 1948, a bilateral treaty wassigned 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 countrieswho have also agreed to these standards are Mexico, Chili, Australia, New Zealand, Japan, and Korea. [71] Hence, the overall thrust of the 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 thisbasis that Crown asserts that deterrence and denunciation are the significant factors which should be taken into account whenestablishing an appropriate sentence in this case. [72] Crown also indicates that the commercial nature of the activity being undertaken by the Offender in this case requires that anyfine be greater than the "simple cost of doing business". In other words, that the fine must be substantial in nature in order to dissuadeindividuals from engaging in this type of conduct when, in fact, by doing so, they can simply increase their profit margin or theirremuneration.

Hence, the amount of the fine being proposed by Federal Crown falls within such a substantial range. Defence Position on Sentencing of the Offender [73] The position taken by the defence is that significant emphasis must be placed upon the fact that Mr. Bob is a first-timeFisheries Act offender, yet he has worked for an extended period of time in the fisheries industry.

He has admitted he has made amistake in terms of the informing himself of the provisions of the licence, a copy of which he apparently never received. [74] It is further stated and fully admitted that he does not have available to him a due-diligence defence as contemplated by the Act. But for the purposes of determining a fit sentence in this matter, I should be taking into account some of the circumstances that havegiven rise to these charges.

In particular, it is drawn to my attention that the licence, as noted above, was actually apparently delivered tothe licence holders, namely, Evening Cove Oysters and Nanoose First Nation, neither of whom apparently have been charged as a resultof these events. For unexplained reasons, that licence was never passed on to Mr.

Bob and, hence, notwithstanding the fact that he wasoperating under the licence, he was never provided with a copy of the licence. [75] It is further contended in submissions by defence (but rejected by Crown) that there should have been a greater responsibility onthe part of the Ministry of Fisheries and Oceans to be providing education to Mr. Bob as a member of the Nanoose First Nation. In thatregard, a document known as a Comprehensive Fisheries Agreement, which was dated the 24th of December, 2012, is referred to by

defence. [76] The purpose of that agreement, as stated within the document, is providing for the orderly management of fisheries and theinvolvement of the Nanoose First Nation in the management, protection, and enhancement of aquatic and fishery resources. It sets outthe arrangements by which the Department of Fisheries will provide access to fishery resources for the Nanoose First Nation, in additionto the contribution of certain funds to support their various activities. The point made by defence is that Mr.

Bob would have been agood candidate, given the nature of the work he was doing, to receive something more in terms of education and explanation of theobligations under the licence and his requirements of fulfilling those obligations. [77] The defence suggests 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. That case points out that s. 718.2(

e) of the Criminal Code is not simply acodification or only a restatement of existing law. Its purpose is to ameliorate the serious problem of over representation of aboriginaloffenders in prison and to encourage sentencing judges to have recourse to a restorative approach to sentencing when dealing with them.Therefore it is to be viewed as being a remedial provision. A number of factors are set out in R. v.

Gladue which must be considered bya sentencing judge when determining what is a fit sentence for an Aboriginal offender. [78] I note parenthetically that the Gladue principles and a special sentencing approach have been reaffirmed more recently in R. v.Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433.

The Ipeelee decision makes it clear that in the process of determining a fitsentence, a judge must consider the unique systemic or back ground factors that may bring the particular Aboriginal offender before thecourt and the types of appropriate sentencing procedures and appropriate sanctions having regard for the offender's Aboriginal heritageor connections. Ipeelee further indicates that the Gladue factors must be considered in a wide range of cases involving Aboriginaloffenders.

However applying these factors on their own do not necessarily justify an Aboriginal offender receiving a different sentenceor mandating a different result. They can provide a context for considering case specific information for an Aboriginal offender. [79] Accordingly, it is on that basis that defence suggests that I should be looking for and considering a rehabilitative sentence forMr. Bob rather than a harsher sentence with denunciation and deterrence as its primary focus. Therefore, it is suggested that given thefact that Mr.

Bob has acknowledged his mistake, and has apparently been able to learn from that mistake and continue with his vocationin terms of harvesting shellfish, that restorative justice should be a primary goal of any sentence imposed upon him. Therefore, aconditional discharge is being suggested with the possibility of community work service and/or educational component. [80] That sentencing position is opposed by Crown. Crown indicates that the requirements of a conditional discharge as set out insection 730(1) of the Criminal Code have not been met in this case.

Accordingly, Crown says that the applicable test which wasestablished by our Court of Appeal in R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), for a courtexercising its discretion to grant a discharge namely that the granting of a conditional discharge is not contrary to the interest of theaccused and also it is not contrary to the public interest have not adequately been made out. In saying so, Crown points to the significantpublic risk of harm or actual harm that may have been occasioned by the illegal activity that took place on the offence date and asdirected by the Offender.

Hence a conditional discharge in this case is contrary to the public interest. Cases Relied Upon by the Crown [81] Crown has referred the court to a number of decisions in support of the proposed sentence that stresses denunciation anddeterrence. These decisions are mostly cases involving Vancouver Island First Nations individuals who were repeat offenders under theFisheries Act and its Regulations for harvesting large amounts of shellfish in a prohibited area. The cases were previously reviewed byme in a decision of R. v. Seward, 2015 BCPC 71 , [2015] B.C.J.

No. 642, at paragraph 44, and they include as follows: R. v.Clyde Alex Johnny, B.C.S.C., Duncan Registry File 12126, (October 28th, 1991); R. v. Kunihiro, [1990] B.C.J. No. 2995, an unreporteddecision of the British Columbia Provincial Court sitting in Victoria, being a decision of Hubbard P.C.J.; R. v. Clyde Alex Johnny, anunreported decision of the Provincial Court, Duncan Registry Number 16961 (February 13th, 1996), being a decision of Mr. JusticeDrake; and R. v.

Martin Patrick Johnny and Kevin Marcel Sylvester, an unreported decision of the Provincial Court, Duncan RegistryNumber 273610-2-C (November 14th, 2007); and R. v. Dale Gordon Crocker, Leonard Raymond Aleck, Corinna May Daniels, RichardJohn Aleck, and Dion James Daniels, an unreported decision of the Provincial Court, Duncan Registry Number 19061 (February 20th,1998). [82] In each of those cases, significant sentences, including custodial sentences, were imposed upon individuals and each of thosecases cites deterrence as a primary factor in sentencing.

I have reread those cases and have taken them into account in coming to adetermination of a fit sentence in this case. Cases Relied Upon by the Offender [83] Other than the Gladue decision, no cases have specifically been brought to the attention of the court on behalf of Mr. Bob. Defence notes that almost all of Crown's cases predate the decision in Gladue thereby limiting their usefulness in this matter. Analysis [84] I accept that deterrence and denunciation is a primary consideration in sentencing matters of this nature.

I am also bound by thedirection of the Supreme Court of Canada in considering other factors when dealing with a First Nation offender as I am in this case. [85] It is noteworthy that the presentence report indicates that the Nanoose First Nation does not have a restorative justice program inplace. Hence, there is at this point apparently no direct way in which Mr. Bob could make a contribution directly to his communitythrough a restorative justice program instituted by Nanoose First Nation. However, that is not to say that some aspect of restorativejustice cannot or would not be beneficial.

Aggravating and Mitigating Factors [86] I accept as aggravating that there was a commercial aspect to the breaches that occurred in terms of the operation of the licence.

I also accept that there were potentially significant risks if the shellfish did get into the food system without going through the necessary purification process. Fortunately they did not and that did not appear to be the Offender's plan or motive. [ 87 ] I also accept as a mitigating factor that Mr.

Bob is a first-time offender under the Fisheries Act with no similar convictions and also apparently he has been able to mostly comply with the requirements of the licence notwithstanding the fact that it was never in his possession nor apparently ever discussed with him by any individuals or organizations who may have received a copy of that licence.

That in itself is of some concern to this court from a public welfare perspective and emphasizes the necessity for clear and constructive discussions between all individuals involved in the harvesting of shellfish, whether they are contaminated or not, to ensure the protection of the stock as well as the protection of the broader community from the harm of contaminated shellfish entering into the food system. [ 88 ] A further mitigating factor is that I accept that Mr. Bob understands the nature of the offence he has committed. He has taken responsibility for that offence by entering guilty pleas in this matter.

I accept that he views the offences from a different perspective than Federal Crown and the Department of Fisheries. He sees this as more in the nature of an administrative error which has given rise to the charges. He expresses concern about the ability for him to pay the fine that are being proposed by the Federal Crown, but for the most part, he is accepting that there will be an appropriate sentence imposed upon him for these offences. Other Case Authorities [ 89 ] I have had the advantage of having conducted a number of Fisheries offence cases in the last number of months. They include R. v.

Canute , [2015] B.C.J. No. 527 . That involved a first-time offender of an Aboriginal background. He had no criminal record and, by way of a joint submission, the matter was disposed of with a $1,000 fine for that offender who had been harvesting shellfish in a closed area due to significant contamination. He received the fine together with a 12-month probation order with community work service. In that case, he was required to complete 100 hours of community work service. [ 90 ] In another case, R. v.

Smith , 2015 BCPC 282 , this was an offence by an individual who was again a Native person but with prior Fisheries Act convictions. He was a prawn fisher and had failed to abide by the terms and conditions of his licence by failing to send in required information necessary for the maintenance of the monitoring of the stock. The Crown in that case suggested a fine of $500 on each of the four counts for a total fine of $2,000 with respect to the Fisheries offences. That position was accepted by the court and those fines were imposed. [ 91 ] In another case, R. v. Wells , [2015] B.C.J.

No. 2440 , that was a matter which I had before me, in which a non-aboriginal man who was a professional fisher with a long and respected history in the commercial troll fishing industry pled guilty to having breached the condition of his licence by failing to have an operating revival tank. In that case, Crown suggested a fine of $500 and that fine was imposed upon the accused in that case.

Conclusions [ 92 ] I have considered all the circumstances of this case, including the Gladue factors and including the somewhat unusual circumstances with respect to the operation of the contaminated shellfish licence which was issued to Evening Cove Oysters and the Nanoose First Nation but never provided by them to Mr. Bob though he was required to be operating under it. However, I am of the view that a conditional discharge is not appropriate. A measure of positive deterrence is important and therefore a fine is appropriate.

I am also of the view that in these types of matters there should also be some community work service. This will have the additional benefit of permitting Mr. Bob to contribute back to the community for these offences. Disposition and Sentence [ 93 ] With respect to these offences and the appropriate amount of the fines I am taking into account that one of the co-accused in this matter, namely, Mr. Sampson had his charges stayed and that Mr. Wyse had a $200 fine imposed upon him for the offence under Count 1 of the Information. Taking into account the more responsible role that had been assumed by Mr.

Bob in this case, I am of the view that there should be a fine on each of the two counts of $1,200 for a total fine of $2,400. [ 94 ] I am also of the view that there should be a six-month probation order, and I will impose the terms under that probation order for the purposes of ensuring that Mr. Bob does receive the opportunity to contribute back to the community by completing some community work service. [ 95 ] I am going to ask Mr. Bob to stand. [ 96 ] Mr. Bob, the purpose of the probation order is to allow you to give back to the community.

What I have to clarify for you and make sure you understand is that this is something you must do. It is a court order. I am not going to be approaching this with a significantly large amount of community work service. But it will give you an opportunity, I think, to make a contribution back to the community. However I am mindful that there is no restorative justice program with Nanoose First Nation. Therefore I will leave it to you and the probation officer to work out an appropriate way for you to deal with that community work service. [ 97 ] So the terms and conditions will be as follows.

The mandatory conditions, you shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment. [ 98 ] 201, you shall report in person here in Nanaimo within -- I am going to make it next week, before 4:00 p.m. on Wednesday, January the 6th, 2016, at 4:00 p.m.

So that is in person reporting before that date and you shall report thereafter as directed. [ 99 ] 205, when first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 100 ] 206, you shall not change your address or telephone number without first notifying your probation officer.

[ 101 ] Then, 253, under the direction and supervision of the probation officer, you shall successfully complete 40 hours of community work service which shall be completed within the first four months of the probation order. [ 102 ] Victim fine surcharges do not apply to these offences. [ 103 ] MR. McFADGEN: I -- [ 104 ] THE COURT: That concludes my reasons for judgment. Is there any clarification with respect to any matters which I have imposed with respect to the sentence? [ 105 ] MR.

McFADGEN: Your Honour, with respect to the probation order, I am certainly in the court's hands, but I will note Your Honour has the ability to either make that probation under -- order under the Criminal Code or, alternatively under the Fisheries Act . It is specifically 79.2 of the Fisheries Act , effectively allows for a number of directions or requirements, one of which is community work service. So I am in the court's hands. [ 106 ] THE COURT: I am going to -- [ 107 ] MR.

McFADGEN: The only reason I bring that to the court's attention is if he breaches a condition of the criminal court order, he runs the risk of a criminal charge versus -- I mean obviously a breach is still a breach, but -- [ 108 ] THE COURT: Right, I am going to make that -- thank you for drawing that to my attention. I am going to make that under the Fisheries Act . [ 109 ] MR. McFADGEN: Thank you, Your Honour. [ 110 ] THE COURT: Okay. Anything further? [ 111 ] MR. McFADGEN: Crown will be directing a stay of proceedings of Count 3, Your Honour. [ 112 ] THE COURT: So recorded. [ 113 ] MR.

GIBB: Thank you, Your Honour. [ 114 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]