R. v. Anderson Date:, 2016 BCPC 372

Citation: R. v. Anderson Date: 20161014 2016 BCPC 372 File No: 83856-2C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GREGORY GRAHAM KENDAL ANDERSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: A. Clarkson Counsel for the Accused: O. Snowdon Place of Hearing: Abbotsford , B.C. Date of Hearing: September 27, 2016 Date of Sentence: October 14, 2016

[1] THE COURT: Mr. Anderson is before the court on two offences, one of which I have never dealt with before. He has pledguilty to two offences from October the 27th, 2015. The unusual one being unlawfully importing animals into Canada without a permit,contrary to s. 6(2) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. The second,not quite so uncommon, being making a false statement to Customs, which is an offence pursuant to s. 153(

a) of the Customs Act. Thelawyers are agreed that a financial penalty is required, but perhaps not surprisingly differentiate with respect to the amount of thatpenalty. [2] I am told that there is an international convention which is designed, as best it can, to protect or to eliminate trade inendangered species and to carefully control trade in animal species that are threatened but have not yet reached the endangered list. Pursuant to that convention, Canada has the Act that I previously referred to, the Wild Animal and Plant Protection Act.

That Act has, Iam told, an absolute ban on the trade of endangered species, and enumerates other categories of species based on the degree to whichthey are threatened, setting out that trade in those species can only be done with permits. The permits are then issued based on thedegree of threat to the particular species, taking into account things such as where the particular species comes from and I suppose all ofthe factors that need to be considered in terms of the threats that they face. [3] What the accused did here was attempt to cross the border into Canada with six infant lizards in his pocket.

He did not havethe required permit for those species. They were not on the endangered list, but were next to that. I gather they are an appendix 2species and so permits were definitely required for the trade and import of those little lizards. [4] What makes it worse is that, certainly at the time that he was at the border, he knew that he was not allowed to do this. Hedenied having any plants or animals to declare. When it came out that he worked in a lizard store he specifically denied having orbringing across anything for the store and, I believe a third time, again denied having animals.

It was only when Customs pursued thingsfurther that they ultimately found the infants in his pocket. [5] Both counsel have correctly set out the aggravating and mitigating factors. Mr. Anderson -- and I am sorry, I missed how oldhe is? [6] MS. SNOWDON: He's 32. [7] THE COURT: Mr. Anderson at the age of 32 has no criminal record. I gather he does not have any record for related offencesunder the Wild Animal and Plant Protection Act or the Customs Act, so this is the first time he comes before the court. He has entered aplea of guilty which does show remorse.

I am also told that he has personal circumstances, various medical, mental health anddisabilities, which certainly would affect his ability to pay a fine, all of which are circumstances that the court should consider. [8] I am told that he is an avid reptile enthusiast. I have to say I would have thought that somebody who was really into reptilesmight pay closer attention to the breed and the risks to that breed.

I would have thought that somebody who was an avid reptileenthusiast would be more attentive to the safety and longevity of the reptile species, rather than stuff these little infants into his pocketand attempt to smuggle them across the border, and not get the necessary permits that are required. [9] His counsel does tell me that he went to the States in order to acquire these reptiles, that it was only there that he was told that itwould be illegal to try to cross the border with them, and instead of doing what he should have done which was return the reptiles towherever he got them from or ensure that they were in safekeeping, he put them in his pocket and persistently lied to Customs. [10] The Crown is seeking a significant fine to meet the principles of denunciation and deterrence; deterrence not just of this accusedbut more significantly perhaps to all those other reptile enthusiasts who might be tempted to go out there and behave in similar fashion.

In my view, denunciation and deterrence are definitely sentencing principles that must be emphasized. [11] As I have said, both lawyers agree that fines should be imposed. Crown is seeking a global monetary penalty of $8,000, whiledefence is asking that the penalty be $1,000 as a reflection of the accused's disability and his financial ability to pay. So with that inmind I have had a look at all of the cases that have been provided to me by counsel. While none deal with the unlawful importing ofreptiles or indeed false statements, nevertheless, they do, I think, provide some assistance to the court.

So I will deal with those casesbriefly. [12] First the case of R. v. Howard, a decision of the Honourable Judge Field on October the 25th, 2005 out of the Surrey registry. That accused, if I have got the facts right, smuggled in 15 turtles over two different days; 12 turtles one day, and somewhat amazinglytried it again a second day with more turtles. I think it might have been dealt with by the same customs officer both days. That accusedreceived a global monetary penalty of $8,000.

In my view the circumstances are worse than the case before me given the fact that moreanimals are involved, and in particular that he did it not once but twice. [13] There are two cases in which a $5,000 monetary penalty was awarded. R. v. Mayne, again Surrey Provincial Court, this timethe Honourable Judge Hicks and that decision can be found at 2010 BCPC 353 , [2010] B.C.J. No. 2681. There a $5,000 globalpenalty was awarded.

That involved possession and transfer of a Peregrine Falcon and it was noted that no harm was done to eitherwildlife or habitat, that had that accused fully reported as required he actually would have been covered by a permit, but he chose not todo so as a protest of the legislation. The moral blameworthiness there is not as high as this particular case. [14] I have been given the decision of R. v. Sendback (phonetic), Yukon Territorial Court, 1998 Y.J. No. 34, again with a monetarypenalty of $5,000.

The circumstances are not set out in the judgment, so all I have is the amount with no details. [15] Finally, there is a decision of Canada v. Marsland. That is a decision of the Saskatchewan Court of Appeal found at 2012 S.J.No. 255. There the monetary penalty was lowered by the appeal court to $100. That involved a person who sold deer and he had some,but not all of the required permits. So, there the moral blameworthiness really is on the low side, and the $100 fine is not something thatI think would help this court in its determination.

[ 16 ] When I look at the whole of the circumstances, the degree of moral blameworthiness, the importing of these six lizards, coupled with the making of the false statements to Customs, I have decided that the appropriate monetary penalty would be $6,000. This is not as serious as the Howard case with the two separate incidents, but it is definitely more serious than the other decisions that I have referred to.

And with that in mind I have arrived at $6,000 being the appropriate amount. [ 17 ] I am mindful that this will be a significant financial penalty to someone in the accused's circumstances, but I am also satisfied that a very long time to pay is available to him.

I think the important thing here is to set out a benchmark, so should other people in the accused's position think that it is a good idea to avoid the $1,000 permit fee by trying to do this, they need to know that they could end up paying six times as much if the offences are revealed. [ 18 ] On Count 1 and Count 4 specifically, and very much taking into account the accused's personal circumstances, it will be a fine of $500 on each count. I will also order that $5,000 be paid pursuant to section 22(6)(

b) of the Environmental Damages Fund. [ 19 ] Now, I do not see there is anything in this draft order with respect to time to pay? (DISCUSSON RE TIME TO PAY) [ 20 ] THE COURT: What I am going to do is extend time to pay the fines for a period of six years from today's date. I am going to order the EDF payment of $5,000 to the Receiver General in Trust to the Environmental Damages Fund by mailing payments to the particular address. I am specifically going to order that that be made by payments in the amount of $100 per month commencing -- and can he make his first payment November the 1st? [ 21 ] MS.

SNOWDON: Yes, I believe so, yes. [ 22 ] THE COURT: Okay. Commencing November 1st, 2016 and continuing on the 1st day of each month thereafter until paid in full. I am not just saying $5,000 and you can forget about it for six years, but rather making a payment schedule. $100 per month commencing November 1st and continuing on the 1st day of each month thereafter until paid in full. Do either counsel see any difficulty with that? [ 23 ] MR. CLARKSON: No, Your Honour, thank you. [ 24 ] THE COURT: Okay. [ 25 ] MS.

SNOWDON: Does it provide flexibility in case he is able to make a lump sum payment? [ 26 ] THE COURT: Well, that would be the payment schedule. [ 27 ] MS. SNOWDON: Until it's -- yeah, yeah. [ 28 ] THE COURT: Let him know that if he comes into some money and he's able to pay it off he should do that. [ 29 ] MS. SNOWDON: Yeah. [ 30 ] THE COURT: And then he can turn his mind to -- [ 31 ] MS. SNOWDON: The payment of the fines then. [ 32 ] THE COURT: -- the payment of the fine. I have set it up this way because I want the Environmental Damages Fund to get money before the payment of any fines.

And, Madam Clerk, are you able to assist? Is there going to be a victim fine surcharge on this? [ 33 ] MR. CLARKSON: No, there's not. Only the Criminal Code and Controlled Drugs and Substances Act . I can enter a stay on Counts 2 and 3. C.J. ROUNTHWAITE Provincial Court Judge