R. v. Maillot Date:, 2012 BCPC 131

Citation: R. v. Maillot Date: 20120322 2012 BCPC 0131 File No: 86948 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW MARK MAILLOT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: J. MacAuley and M. Wolf Counsel for the Defendant: L. Kompa Place of Hearing: Port Coquitlam , B.C. Date of Hearing: March 22, 2012 Date of Judgment: March 22, 2012

[ 1 ] THE COURT : Mr. Maillot pleaded guilty to Count 1 on Smithers Information 22247-1 on a charge that from the 1st day of November, 2008 to the 2nd day of October, 2009, inclusive, at or near the Zymoetz River near Smithers, Province of British Columbia, he did act as a guide for fish for Michael O'Connor, Steven Arch, and Fernando Ortiz (all phonetic) without being the holder of either an angling guide licence or an assistant angling guide licence, contrary to s. 489(1) of the Wildlife Act , R.S.B.C. 1996, c. 488 as amended. [ 2 ] The circumstances of the offence are as follows. [ 3 ] Mr.

Maillot guided the three individuals named in the charge on a six-day fishing trip on the Copper River but more specifically the branch called the Zymoetz River near Smithers, B.C. [ 4 ] Mr. Maillot was paid by the three individuals named in the charge although I understand Mr. Maillot did not profit from this particular trip. [ 5 ] The trip was planned in advance by way of email, setting out itineraries and other travel arrangements. Mr. Maillot arranged for equipment rentals and other requirements from his end to act as a guide for these three individuals. [ 6 ] Apparently, it was a good trip and Mr.

Maillot and the three individuals ended up as friends as a result of the six day trip. [ 7 ] The trip however came to the attention of the authorities only because the 2010 trip that was planned to be guided by Mr. Maillot did not occur. Mr. O'Connor went to the authorities to complain that when he arrived for the next trip, the 2010 trip, Mr. Maillot did not show and he and his friends were left kind of high and dry. So it is only by quirk, for lack of better words, that the authorities were ever even notified of the 2009 trip. [ 8 ] Turning now to the offender. [ 9 ] Mr. Maillot is 35 years old.

He is married; he has a 13-year-old son. His 13-year-old son lives with the son's mother in another location. Mr. Maillot grew up on the Bulkley River. He still has family in the area. He has lived most of his life in the Smithers area, as well as in the Chilcotin. [ 10 ] Very much to his credit, Mr. Maillot ran a successful river rafting business for about 15 years. He sold that business in 2007. Mr. Maillot is an accomplished river rafting guide. He has been licensed and certified to both guide and instruct for river rafting. He has done so not only in Canada but in the United States. [ 11 ] Mr.

Maillot met all of the regulatory requirements for his river rafting business. He became highly regarded in the Chilcotin area by the RCMP and others for his skills in carrying out search and rescue missions. He was what I could call the point man for the police in the communities when somebody was in danger. [ 12 ] Mr. Maillot does not have a criminal record. He is most sorry for what he did do. He understands the seriousness of the offence and promises that he will not do it again.

He has suffered great embarrassment, not only within the tourism industry, river rafting in particular, but also great embarrassment because of the word that has gotten out in the Smithers area as well as the Chilcotin. His family, who have lived on the river as well, have suffered embarrassment too. [ 13 ] Since selling the river rafting business, Mr. Maillot has worked in mining and then was on E.I. His real passion in life is of course the outdoors, but tourism. He has worked in the tourism industry in the past and that is his goal as a career area.

He recently has obtained a position in Prince Rupert in the tourism industry. He wants to continue promoting Tourism British Columbia and make a career of doing so. [ 14 ] I understand because of the time of unemployment, because of the costs of moving and just starting a new job, Mr. Maillot is very pressed financially. [ 15 ] Mr. Maillot, I also should point out for the record, has offered to do a form of community work service given his skills in tourism and the outdoors. [ 16 ] Crown seeks the following as a sentence.

That there be a $9,000 payment to the Heritage Conservation Fund, that there be a $1,000 fine and also a two year, what I would call, angling prohibition. That is all under the Wildlife Act . [ 17 ] Crown has referred to several decisions. I will read the citations into the record: R. v. Robert Meillinger , February 23rd, 2001, unreported, Chilliwack Registry No. 417980-01, a decision of my colleague Judge Ferbey; R. v. Kenneth Fraser , June 12th, 2001, unreported, Chilliwack Registry No. 42561-01, a decision of my colleague Judge Young; R. v.

Grigg , September 12th, 2001, unreported, Chilliwack Registry No. 41800-01, a decision of my colleague Judge Rounthwaite; R. v. Brian Larson , October 5th, 2001, unreported, Chilliwack Registry No. 41799-01, a decision of my colleague Judge McAlpine; R. v. Christian Witt and Billy Jack Witt , December 15th, 2004, unreported, Terrace Registry No. 24634-2C, a decision of my colleague Judge deWalle; and finally R. v. Christon Bruce Abbott , 2005 BCSC 1523 . [ 18 ] The first six decisions deal with guiding and unlicensed guiding. They all dealt with offenders who had no record as like Mr.

Maillot and in all cases imposed financial penalties in the range of $5,000. I should point out those decisions are ten years old. [ 19 ] The seventh decision, the Abbott , supra , decision is not a guiding decision. Rather, it has to do with an offence under the Sewage Disposal Regulation but that decision deals with the principles of sentencing in environmental cases. It sets out the same principle as the remaining six and that is, of course, the primary consideration in sentencing in matters such as these is general deterrence.

[ 20 ] In matters such as these, the fact that there may have been little or no profit or no harm done to persons or the environment really is of no consideration or of little consideration. The primary consideration as I have stated is general deterrence.

In other words, the sentence has to send a message to the community that these types of offences are simply not tolerated by the courts even though as I have stated there may be no profit or little profit and there was no harm done to people or the environment. [ 21 ] I understand that people are watching what the courts are imposing in the way of sentencing and especially with respect to Mr.

Maillot, who is well respected in more than one community for his role in the environment, and his role in respecting the environment, a role that he takes very seriously. [ 22 ] I have to very generously adopt the reasons of my colleague Judge Ferbey in the Meillinger, supra , decision. She stated this and I will just start at line 5 of p. 1: You have entered a guilty plea to unlawfully guiding for fish on or about April 8th, 2000. It is clear to me from what I have read that this was not a spur-of-the-moment event nor was it an isolated incident.

As Crown counsel has noted, this kind of offence is very easy to commit and hard to detect. In this particular case it involved dishonesty on your part, some planning, you knowingly and blatantly committed this offence. Not only did you not have a licence but you also were not insured. [ 23 ] The Court went on to describe that those were aggravating circumstances and I agree. The same circumstances exist here. Mr. Maillot, this was not a spur-of-the-moment decision on your part. It certainly was easy for you to commit, especially given your position I the community as being a river rafting guide in the past.

These types of offences are indeed difficult to detect and of course there was no insurance. I have to point out also that legitimate licensed guides lose money as a result of unlicensed guides. [ 24 ] Clearly the message has to get out. I appreciate, sir, that you have a very difficult financial situation but that can be addressed by way of time to pay the fines. The law is clear that the sentence as suggested by Crown is appropriate.

Your proposal for giving time to the community addresses individual deterrence and that really is not so much of a concern to me to make it attractive in sentencing. [ 25 ] In my view, the sentence proposed by Crown is quite generous and fit, not only for the offence, but for your particular circumstances. So this is the fine: it is under s. 84(3)(

a) a $1,000 fine. There will be two years to pay that fine, sir. Under s. 84.1(e)(ii) there will be a $9,000 payment to the Heritage Conversation Trust Fund specifically for fish conservation and management on the Skeena River. There will be two years to pay that amount. [ 26 ] I will waive any victim surcharges and other surcharges, sir, because I think that the payment to the Trust Fund is in lieu of victim surcharges. [ 27 ] Also, Crown has asked that there be a two year angling prohibition.

Given that I accept that you have not been fishing since this particular offence, and because this is not a fish licensing matter, I am not going to impose the two year prohibition. I do not think that that is required given what you have told me about not fishing on your own. [ 28 ] So two years to pay the total of $10,000, sir. [ 29 ] There will be I assume stays on the outstanding charges Mr. MacAuley? [ 30 ] MR. MACAULEY: That is correct, Your Honour. Counts 2 and 3 on Smithers Information 22247, Port Coquitlam Information 86948. If Mr.

Maillot provides me with an address, what I will do is I will draw up the order. I won't send it to him for approval, I will send it through the Clerk of the Court to Your Honour and then when it makes its way back to me I will send it to Mr. Maillot if he gives me an address. He will have to sign the time to pay for the fine. [ORAL REASONS FOR SENTENCE CONCLUDED]