IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  These are my reasons.  On January 8th, 2018, which was to be the first day of trial, Michael Todd Sparrow and Bruce James Grant pled guilty to charges under the Fisheries Act, R.S.C. 1985, c. F-14, and Pacific Fishery Regulations, 1993.  Michael Sparrow pled guilty to six counts of Information 233513, being two, three, five, 10, 11, and 13, which includes:  Counts 2 and 3, on January 15th, 2014, unlawfully fishing for Dungeness crab during a closed time contrary to s. 63 of the Pacific Fishery Regulations; and Count 3, unlawfully fishing without buoys attached contrary s. 15 of the Pacific Fishery Regulations.

[2]           Count 5 took place on January 16th, 2014 for unlawfully selling crabs caught during a closed time contrary to s. 33 of the Fisheries Act.  Counts 10 and 11, which took place on March 3rd and 4th, 2014, and are for unlawfully fishing for Dungeness crab during a closed time contrary to s. 63 of the Pacific Fishery Regulations, and fishing for crab without buoys contrary to s. 15 of the Pacific Fishery Regulations.  Finally Count 3 arose on March 4th, 2014, for unlawfully selling the crab caught during the closed time contrary to s. 33 of the Fisheries Act.

[3]           Bruce James Grant pled guilty to Counts 10 and 13 outlined above.  At the commencement of the sentence hearing, Ms. Humchitt advised that Mr. Grant was ill, but he wished Ms. Humchitt to act as his agent in his absence.  Crown counsel was agreeable to proceeding on this basis as the offences were regulatory and not criminal.  I agreed and the hearing proceeded on this basis.

[4]           The hearing proceeded on an agreed statement of facts, which was marked as Exhibit 1 in these proceedings.  Fisheries Officer Catriona Day was called to testify by the Crown.  The Crown also filed several impact statements.  Chief Sparrow was called to testify by the defence.  Ms. Humchitt filed a document she authored entitled, "Michael Sparrow and Bruce Grant Joint Gladue Report for Sentencing."  A footnote in that report indicates there was limited information on Mr. Grant due to his non-participation in the preparation of the report.  It was stated in this document that the details on Mr. Grant would be communicated mainly orally so that his Gladue factors could be considered by the court.

[5]           The crabs in question were caught illegally in January and March of 2014 in Howe Sound near Keats Island using unmarked crab traps.  In addition to the area being closed to fishing as it was out of season, the area was also closed to commercial fishing due to the waters being contaminated with dioxins.

[6]           The area where the crabs in question were caught is within waters that the Squamish Nation have a licence to fish for their own use.  Mr. Grant and Mr. Sparrow are from the Musqueam Reserve lands and their band is not licensed by the Department of Fisheries and Oceans Canada, hereinafter referred to as DFO, to fish in this area.  Chief Sparrow stated his strongly-held view that there was not consultation with First Nations when these boundaries were constituted.  This is also stated to be Michael Sparrow's view, as set out in Exhibit 6.  Mr. Sparrow and Mr. Grant have, however, pled guilty to the charges previously set out and dropped their s. 35 Charter defence, despite Mr. Sparrow's views.

[7]           The materials filed by consent indicate that the crabs sold to Yat Ming Seafood Market could be harmful to humans if the hepatopancreas (the liver) of the crab was consumed.  The liver appears as a brown gooey substance when the crab is opened.

[8]           The charges in question were laid following an intensive surveillance operation by the DFO of which Officer Day took part.  The operation was undertaken by the Steveston DFO office.  There were eight officers on the staff at this office at the time, but Officer Day testified that due to holidays and illness, there was rarely a full complement.  The Steveston offices are responsible for patrolling a very broad area of water shown in the map at page 25 of Exhibit 2.  In addition, officers are responsible for inspecting shops and processing plants in the fishery.

[9]           DFO officers from other offices were seconded to this investigation.  There were approximately 20 officers involved.  The investigation was costly in both manpower and funds from a limited DFO budget.  The Coast Guard also assisted in the surveillance of the boat owned by Mr. Sparrow, Muddy Waters, with added cost to taxpayers.

[10]        At the relevant times, Mr. Sparrow owned a boat called Muddy Waters.  Mr. Sparrow and others on his boat were observed taking unmarked cages of crab from Howe Sound on January 15th, 2014, and then offloading six wire cages full of live crab in the early morning hours of January 16th, 2014.  Mr. Sparrow and two men were observed in video by DFO officers unloading the cages of live crab into the back of the Yat Ming Seafood Market located on Kingsway in Vancouver, British Columbia.  These crabs were not seized and Fishery officers did not make their presence known to Mr. Sparrow or the others he was with at that time.  As the crab were not seized, it is likely they were sold and consumed by members of the public that were unaware they were caught from dioxin-contaminated waters.

[11]        Mr. Sparrow, Mr. Grant, and the other men were again observed by Fishery officers on the Muddy Waters with stacked wire cages leaving the dock on March 3rd, 2014.  I note that Mr. Grant was not involved in the January 2014 charges.  The boat and men on it were kept under observation, and in the early hours of March 4th, 2014, were observed in the waters, again near Keats Island, bringing crab traps with live crabs on board and setting more traps.  There were no floats to mark these traps.

[12]        After the live crabs and cages were offloaded, Mr. Sparrow and Mr. Grant delivered five cages of live Dungeness crab again to Yat Ming Seafood Market.  The crabs weighed approximately 699 pounds without the cages. 

[13]        When the DFO officers entered the Yat Ming Seafood Market, Mr. Grant was seen to drop $3,820 of cash and a handwritten receipt from the owner of that business in the amount of $4,019.  Mr. Deng, the owner of Yat Ming, advised the DFO officers he had paid $4,000 cash for the crab.  These funds were seized from Mr. Grant, but returned to him.  I am advised he in turn returned this money to Mr. Sparrow.  This was not disputed.

[14]        Mr. Sparrow and Mr. Grant were arrested in March of 2014.  Mr. Deng identified the crab that had been delivered by them.  The crabs were seized by the DFO and released alive back into Howe Sound.  Mr. Sparrow did volunteer the location of other traps in the area.  A DFO officer dragged up 28 crab traps with 381 live crabs that were released April 10th, 2014.  Mr. Sparrow also voluntarily disclosed the location of 57 unmarked traps that contained 860 live crabs which were released on April 12th, 2014.  The trap total was 85.  Contrary to Fishing Regulations, the traps had zap-straps to secure the lids.

[15]        I qualified Officer Day as an expert in Fishery Regulations and crab fishing.  She gave her evidence in a credible manner, and I find her evidence reliable.  She testified that the waters in Howe Sound were contaminated by dioxins in the 1980s from the pulp and paper industries.  The area has been closed for commercial fishing since then.  She understands that in some Asian cultures the crab liver is considered a delicacy and is called "crab butter."  I note that Vancouver has a very diverse food culture and diners might try this regardless of what culture they are from.

[16]        Officer Day testified that the straps on the traps in question were made from rubber that does not disintegrate like the twine closing that is required.  This means that crabs that enter these traps will not be able to escape into the water if the trap is not retrieved.  They will cannibalize each other for food or die.  Chief Sparrow testified that during the months of the closure in question, the crab shells are softer and thus the crabs are more likely to be cannibalized.  The females also will not breed.  This is one reason that the commercial fishing of crab is closed during the time in question.  Chief Sparrow testified that, in his view, the fisheries are quite decimated at the end of the commercial fishing season.

[17]        Yat Ming Enterprises Ltd. was previously sentenced to a fine of approximately $72,000 plus an ancillary order that is in place for two years post conviction.  Two of the convictions were for offences contained in the same Information before me.  There was also another conviction, on another Information.  The sentence of Yat Ming Enterprises Ltd. was imposed following a joint submission to my brother Judge St. Pierre.

[18]        Officer Day testified that one cannot tell by looking a crab if it is contaminated.  She states that given the traps were not marked, they could not have been located unless one knew the coordinates.  Mr. Sparrow did provide these coordinates after he was charged with these offences.

[19]        Officer Day stated that this investigation, which led to the guilty pleas before me, arose from an atypically large investigation and deployment of DFO resources.  It required overnight surveillance by officers with overtime pay.

[20]        Officer Day said it is up to individual fishers to check if an area is closed for contamination.  Contaminated areas are listed on licences for the area one is licensed to fish.  This information can also be obtained online or from the Fishery office by phone or attending in person.  She said the onus is on the fisher to find out such information.  Commercial fishing is never allowed in the area in question from protection of the public.  Members of the public do not know where crabs they purchase are from.  Sports fishers and fishers from the Squamish Nation, who know of the contamination, are aware of the risks and choose whether or not they wish to eat the crab from Howe Sound.  Officer Day said it was her personal opinion that there should be signs in the area warning of contamination, but this is not required by law and is not done generally.

[21]        Crown and defence agree on the terms of the ancillary orders Crown seeks, but disagree on the amount of fines to be imposed on Mr. Sparrow and Mr. Grant.

[22]        Chief Sparrow was called to testify on behalf of Mr. Michael Sparrow. He is the elected chief of the Musqueam and has been involved on Musqueam fish commissions since 1992.  He is the current chair of a company incorporated for purposes of First Nation fishing between three bands and these licences operate under the name of Salish Sea Fisheries.  He stated that the number of fishing vessels operating by Musqueam Nation members has been reduced from 75 in the 1990s to 45.  This is due to the decrease in the salmon stock.  Exhibit 6 outlines the long history of time that the Musqueam have fished for salmon in their traditional fishing grounds.

[23]        Chief Sparrow stated there are now 40 band members employed in several Musqueam property development projects that include the Jericho and Fairmont Lands.  There is a plan to employ Musqueam fishers to supplement their income or replace it working on these projects.  He also testified it is a goal of the Musqueam People to restore and conserve fishery resources in their territory.  He anticipates band members will be hired to work on these initiatives and gives the waters off the Vancouver Airport as an example of where band members may be employed.

[24]        On cross-examination, Chief Sparrow agreed the Musqueam fishing area is closed to commercial fishing from November to June for conservation reasons.  Soft shell crabs during the off-season molt and there is a higher mortality rate when one traps crabs at this time and breeding females also need to be protected by the closure.

[25]        Chief Sparrow stated that the First Nations were not consulted, nor were they aware of fishing area boundaries before they were put in place by the DFO.  He said that he is hopeful that there will be negotiations between First Nations and the government shortly to re-set boundaries, but at the time of this hearing, they had not commenced.  He stated there are controversial areas of fishing boundary overlap with other Nations, including the area in question.  He stated that the Chiefs of other First Nations, including the Chief of the Squamish Nation, are willing to discuss controversial boundaries internally.  He said there has been discussion between First Nations about exchanging fishing for hunting access.

[26]        The offences in question go beyond fishing out of the Musqueam's licenced area.  They involve fishing during closure and selling uninspected crabs for public consumption.  Both the health of the fishery and of the public were put at risk by these actions.

[27]        In terms of positions on sentencing, I will deal first with the Crown's position in regards to Michael Sparrow.  The Crown is seeking fines against Mr. Sparrow pursuant to s. 78, s. 79.1 and s. 79.2 of the Fisheries Act totalling $27,820.  This is comprised of $4,000 for each of the six counts pursuant to s. 78 of the Fisheries Act.  A further sum of $3,820 is sought under s. 79 of the Fisheries Act.  This is the amount of money that was seized and returned to Mr. Grant, who then returned it to Mr. Sparrow.  The Crown submits that the fines may be paid over five years and sets out the installments which they are seeking.  The Crown also seeks ancillary orders regarding fishing notifications to the DFO and possession of shellfish that are not in dispute.

[28]        In regards to Bruce James Grant, the Crown seeks fines totalling $5,000 under s. 78 of the Fisheries Act.  This is comprised of a $2,000 fine for Count 10 and a $3,000 fine for Count 13.  The Crown seeks the same ancillary orders against Mr. Grant as those outlined against Mr. Sparrow, and again, they are not disputed by Mr. Grant.

[29]        The Crown submits that deterrence and denunciation are the sentencing principles in the forefront, especially in regards to Michael Sparrow, who has three prior convictions regarding Fisheries Act offences.  Mr. Grant has no prior offences under fishery legislation.  The Crown submits that given the vast area DFO patrols, it is very easy to “cheat the system” and not get caught for offences that the defendants have pled guilty to.  The Crown further submits that any fines imposed should be greater than a cost of doing business in the lucrative seafood industry.

[30]        Aggravating factors cited by the Crown include that the offences took place during the fishery closure for crabs in an area of Howe Sound not included in the Musqueam fishing licenced territory.  The area was not open for commercial fishing at any time due to dioxin contamination which posed a risk to people if such crabs were sold and consumed if the crab livers were eaten or if the liver was not properly washed away.

[31]        The Crown notes that the offences that the defendants have pled guilty to are strict liability offences, and the onus is on fishers to get information on contaminated areas.  The fishing in question was also for a profit, which the Crown states is further aggravating.  The cost and use of scarce resources for the investigation leading to the charges in question is another aggravating factor, as is the failure to mark the crab traps.  The use of plastic zap-lines depletes the fishery by leading to the death of the caught crabs as does fishing in the closed area and these are cited by Crown to be further aggravating.

[32]        In mitigation, the Crown states Mr. Sparrow acknowledged that he, and not his nephews who were on the boat, should be held accountable for these offences.  Further, Mr. Sparrow cooperated with the DFO in locating the traps, that all crabs in the traps in Howe Sound were successfully released.  Some were also released from the March seizure from the seafood market.

[33]        In regards to Mr. Grant, the Crown notes it is mitigating he has no prior fishery violation record and that he did not personally profit.  He returned the monies that were seized and returned to him to Mr. Sparrow.

[34]        The Crown acknowledges it has the onus to establish that the defendants have the ability to pay fines imposed.  The case law is clear that the Crown must establish this ability on the balance of probabilities.  The Crown submits that Mr. Sparrow is an experienced commercial fisher with a licenced fishing boat and that, with five years to pay, he should be able to pay the fine sought.  The Crown further states that Mr. Sparrow is capable of working in the off-season when the fishery is closed.

[35]        Mr. Grant did not appear for the sentencing hearing.  The Crown submits that the amount of the fine is not high and, with time to pay, Mr. Grant should be in a position to pay the fine sought.

[36]        The Crown submits its sentencing position incorporates Gladue factors and notes the defendants pled guilty.  While the pleas were entered on the first day of what would have been the trial, the guilty pleas did greatly reduce court time and the Crown was able to denotify witnesses. This was submitted by Crown as a mitigating factor.

[37]        The sentencing position on behalf of the defendants was put forward by Ms. Humchitt.  She states that the only area of disagreement on sentencing is the amount of fines the Crown seeks to impose on Mr. Sparrow and Mr. Grant.  The defence agrees to the ancillary orders.  She submits that a global fine in regards to each defendant would be sufficient.  She left it to the court to determine the appropriate fines, if fines are imposed, but stated that the amount of the fine sought against especially Mr. Sparrow could financially break him. 

[38]        Ms. Humchitt further submits that a community service work order pursuant to s. 79.2(e) would be appropriate for all or part of the penalty imposed in respect to Michael Sparrow.

[39]        On January 30th, 2018, Ms. Humchitt filed a report titled, "Michael Sparrow and Bruce Grant Joint Gladue Report for Sentencing."  Crown did not receive a copy of this document until after she had closed her case, but consented to the document being entered as an exhibit.  It was marked Exhibit 6.  Ms. Humchitt did apologize for the late disclosure of this document to Crown, and as I stated at the time, this should have been produced to Crown much in advance.

[40]        Ms. Humchitt authored the document and signed her name as both the Gladue report writer and defence counsel.  It is appropriate and of assistance to the court to receive a written brief on Gladue principles relating to sentence.  There are, however, potential problems when defence counsel also authors the Gladue report.  Defence counsel advocates for clients.  An author of a Gladue report, like that of a pre-sentence report, should be independent to avoid the risk of the author straying into advocacy.  Some of the content of the last two pages of Exhibit 6, in my view, cross the line into advocacy.

[41]        I have considered and find the background information presented on each individual's life circumstances in Exhibit 6 to be of assistance.  I further note the caveat in Exhibit 6 and Ms. Humchitt's submission that Mr. Grant did not participate in the preparation of this document.

[42]        In regards to Michael Sparrow, defence counsel outlined that Mr. Sparrow is 48 years old.  He has always lived on the Musqueam lands in the Greater Vancouver Area.  He comes from a long line of Musqueam fishers including Ronald Edward Sparrow, who is the Sparrow in R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075.  This is a precedent-setting case taught to all constitutional law students in British Columbia and likely in all Canadian law schools.  Michael Sparrow is the cousin of Chief Sparrow.  Members of the Sparrow family have been involved in a number of positive contributions to the community within and outside the Musqueam lands.  Family members are active in politics and advocacy.

[43]        Mr. Sparrow did not attend residential school, but is an intergenerational survivor.  His parents attended residential school and two of his brothers died from substance abuse.  Under the "Gladue Considerations" heading of Exhibit 6, the dysfunction to survivors and intergenerational survivors of residential schools is described.  Cases such as Gladue, Ipeelee, and more recently the report from the Truth and Reconciliation Commission of Canada record the intergenerational harm caused to members of First Nations.

[44]        Mr. Sparrow has been a fisher from a very young age.  He has a Grade 10 education.  He is married and has three young children.  Exhibit 6 indicates he pays $400 a month in child support for his eldest child who is 10.  His two youngest children reside with him and his wife on the Musqueam Reserve lands.  Mr. Sparrow supports himself and his family as a fisher during the fishing season.  He appears physically fit and there was no evidence he has any condition, injury, impairment, or disability that prevents him from working.

[45]        During the fishery closure, he collects Employment Insurance.  The fishery is currently closed and it is stated that he received $2,200 a month Employment Insurance.  Under the "Finance" section of Exhibit 6, it is stated that there were only three days of salmon fishing last year due to declining salmon stocks.  It is stated that Mr. Sparrow sold his boat, the Muddy Waters, and that he has used the proceeds of sale to purchase another boat.

[46]        In terms of mitigation, defence submits that Mr. Sparrow has accepted responsibility for his actions despite his view that the current fishing boundaries are contrary to his s. 35 rights.  This avoided a trial and Crown witnesses involved in the investigation that led to the charges were denotified prior to the commencement of trial.  Mr. Sparrow's counsel notes that a number of the judgments relied on by Crown were cases where reasons were granted following a trial rather than guilty pleas.

[47]        In terms of Mr. Sparrow's record of fishery violations, defence notes it is fairly dated and he is not a serial offender.  His first conviction arose from a contravention of s. 78 of the Fisheries Act in 2000 to which he pled guilty.  The next two convictions arose in September 2005.  These convictions were for buying, selling, trading, or bartering fish without a licence contrary to s. 35 of the federal Fishery Regulations and, again, he pled guilty.  He was placed on probation for a year in 2005.

[48]        Ms. Humchitt states it is mitigating that in March of 2014, Mr. Sparrow cooperated with Fisheries and provided coordinates where the traps remaining in Howe Sound could be found.  This allowed the crabs to be released in April, 2014.  Defence counsel submits that the six cages of live crabs delivered by Mr. Sparrow and others to the Yat Ming Seafood Market were not seized and, presumably, were sold to the public with the inference being that, had there been a real risk to public health, they would have been seized.

[49]        Financial information regarding Mr. Sparrow was adduced by defence counsel very late in the day, on the last day of the hearing.  Counsel for Mr. Sparrow filed copies of Mr. Sparrow's tax returns for 2012, 2013, 2015, and 2016, in addition to T4Es, which are statements of Employment Insurance, and other benefits for 2015 and 2016.  No asset summaries or fishing activity summaries was included in the 2013 or 2016 returns.  Mr. Sparrow’s 2014 tax return was not put before this court.  That is the year that these offences took place.

[50]        The 2012 fishing activity summaries list approximately $13,000 in expenses incurred by Mr. Sparrow.  The 2012 return does not contain an asset summary.  Net total income is stated as a loss.  In 2015, there is an asset summary which appears to include the purchase of the Muddy Waters, but the date of acquisition is stated to be December 31st, 2013.  The cost of that boat was stated to be $40,000.  There is gross income recorded on the fishing activity summary for 2015 as $53,876 with a net loss of $32,260, but this is not clear.  Details and documents are lacking to accurately quantify net income.  For example, there is $30,000 attributed to licences but no particulars or supporting documents were put before the court.

[51]        The Crown submits that the financial information provided and marked as Exhibit 7 is not complete and raises more questions than answers.  The only information about Mr. Sparrow's 2017 earnings is his counsel's submission that he is currently receiving $2,200 a month from EI.  This is double the EI benefits stated in his 2016 T4E, which the Crown submits indicates a fairly lucrative 2017 fishing season for Mr. Sparrow.  There is no current statement or particulars of 2017 assets or living expenses and any new boat purchased by Mr. Sparrow would be deducted as a one-time cost.  Crown submits Mr. Sparrow has the capacity to work when the fishery is closed and has the capacity to earn more than recorded in his incomplete tax information.

[52]        At the end of submissions, I asked Mr. Sparrow if he wished to say anything.  He took full responsibility for his actions leading up to these offences and his guilty pleas.  He said that the declining stock of salmon in the season before the offences reduced his income significantly from salmon fishing and were the reason for the offences.  He said he has not been back to the area since and acknowledges that he made a big mistake fishing there.

[53]        In terms of Mr. Grant, defence counsel advised Mr. Grant and his family have resided on the Musqueam Reserve lands for a very long time.  Like the Sparrows, members of the Grant family have made positive contributions inside and outside the Musqueam Reserve lands.  The Grant family includes members of the legal profession and well-respected elders that contribute to all communities in the Lower Mainland, again, both within and outside the Musqueam Reserve lands.

[54]        Ms. Humchitt appeared as Mr. Grant's agent and, on the first day of the sentence hearing, she advised that Mr. Grant was in ill health and suffers from alcohol abuse.  Mr. Grant did not attend the sentence hearing.  On the last day of the hearing, Crown advised that she understood from a DFO officer that Mr. Grant had been at the Steveston office that day and was going to go fishing.  She did not, however, have that officer testify or provide affidavit evidence.  The court does not know what Mr. Grant was told or not told about coming to court, and I therefore am not considering this information in my decision, although I may have had the Crown called evidence on this point.

[55]        Under the heading "Gladue Factors" in Exhibit 6, it is stated that Bruce Grant did attend residential school and is believed to have received a significant settlement due to residential school abuses upon himself.  Ms. Humchitt informed the court that Mr. Grant lives on the Musqueam Reserve and receives $230 a month from social assistance.  I understand that this amount is less than the normal amount of social assistance one would receive living off reserve as housing is provided for him on the reserve.  No tax returns or other documents apart from what is stated in Exhibit 6 in regards to Mr. Grant's financial situation was before the court.

[56]        Mr. Grant has no prior convictions for offences under the Fisheries Act or Regulations.  From the agreed statement of facts and submissions, it is clear he was on the Muddy Waters and was the person who physically received the money for the crabs at the Yat Ming Seafood Market, but under the direction of Mr. Sparrow.

[57]        In terms of authorities, the Crown relies mainly on B.C. Provincial Court cases wherein Indigenous fishers have been sentenced for fishery offences which are strict liability regulatory offences under the Fisheries Act and Regulations.  Some of the facts in these cases are similar, but as in most cases before the court, it is hard to find any that are identical.

[58]        The cases relied on by the Crown indicate the following:

[59]        Deterrence and denunciation are generally primary sentencing principles.  This is indicated in R. v. Cardinal, 2009 ABPC 296 and 2010 ABQB 773 [sic, 673]; R. v. Hughes and Sampson, Number 277471-1, 27749-1, 2017, Prince Rupert Registry, at paragraph 71; R. v. Paul , February 3rd, 2017, Terrace Registry, Number 31167-1, at paragraphs 58, 59, 60 to 63, although it is noted in that case that other sentencing factors, including rehabilitation, still apply and this is at paragraph 71.

[60]        The penalty imposed should send a message that it is not just a cost of doing business (R. v. Paul, supra, at paragraph 63).  The onus is on the Crown to establish an offender's ability to pay a fine on a balance of probabilities (Hughes and Sampson, paragraph 68) and the court must take into account an offender's financial circumstances.  (R. v. Paul, paragraph 64.)

[61]        Gladue factors are applicable to sentence, as set out in Hughes and Sampson, paragraph 64, 71, and 73.  The Crown submits it has considered Gladue factors and the ability of Mr. Grant and Mr. Sparrow to pay in seeking the fines and ancillary orders sought against each.  No order of forfeiture is being sought against Mr. Sparrow's boat or the truck involved in transporting the crabs in question, no fishing prohibitions are sought, and no incarceration is asked for.  The fines sought by the Crown are within the range set out in the case law.

[62]        In Hughes and Sampson, the offences related to unlawfully selling salmon caught without a commercial licence during a closed time.  A trial was held, unlike in this case, and Mr. Hughes was found guilty on all four counts while Mr. Sampson was convicted on Counts 1 and 2.  At the sentencing, Mr. Hughes stated he was unable to pay anything near the $25,000 fine and proposed a $2,500 fine and at his expense fishing and providing the fish to First Nation elders in his community.  He had no prior fishery convictions and was in good health.

[63]        The court noted the defendants did not agree with the finding of guilt when it was rendered against him and, as a result of this, restorative justice measures were not appropriate because neither defendant believed they were culpable.  Community service work or other restorative justice measures were therefore not part of sentence.  The court noted that in R. v. Wesley (June 20, 2014 and June 23, 2013) Prince Rupert Registry Number 27900-2-C (BCPC), the defendant was sentenced to a fine of $20,000 with two years to pay for catching $9,000 of fish illegally.

[64]        Mr. Sampson was ordered to pay fines totalling $25,000, and Mr. Hughes was sentenced to pay a fine of $20,000.  Ancillary orders were also made against them as set out in paragraphs 84 to 86 of that decision.

[65]        The case of R. v. Paul, supra, is the most recent case before me.  Mr. Paul did enter guilty pleas to two counts of fishing illegally for Dungeness crab during closure and then unlawfully selling the crab.  He was charged after two days of surveillance by DFO officers, who observed him fishing in a closed time for both crabs and prawns without a licence.  He was later observed to be selling the seafood.  When arrested, he had 73 live crabs and 21 pounds of prawns in addition to approximately $209.  Forty-one live crabs were recovered.  Six had already been cooked.

[66]        Mr. Paul was an experienced fisher.  He had no prior record.  He was a member of the Haisla First Nation.  The court found it mitigating that he accepted responsibility and pled guilty, that the amount of seafood involved and its value was at the lower end of the scale.  The aggravating factors are set out at paragraph 53 of the decision.  It included that there were five sales to people and one attempted sale to a restaurant and that the crabs were not subject to proper inspection to ensure they were safe to consume, although there was no suggestion in that case that the crabs were not safe to eat.

[67]        Aggravating factors further included the risk to fisheries and negative impact on conservation and sustainability of fishing during closure and the nature and extent of the DFO investigation and its costs.  An overall fine of $10,000 was imposed on Mr. Paul.  $5,000 was a s. 78 fine and $5,000 was to go toward conservation and a protection fund, plus ancillary orders including forfeiture of items seized which also included the money seized.

[68]        In R. v. Hunt (June 30, 2016 and January 26, 2017) Port Hardy Registry 15796-2-C (BCPC), Mr. Hunt was found guilty of six counts pertaining to the illegal harvesting and sale of contaminated clams.  He advertised them for sale and sold them.  It was held he was unrepentant.  He took the position he had an Aboriginal or treaty right to harvest during closed periods.  He had no prior record of fishery offences.  His financial circumstances were quite poor.  He received approximately $267 a month from social assistance plus some hydro supplement from his band.  There was no evidence before the court he had any health problems and was described as active.

[69]        It was held aggravating that the offences carried with them possible serious and significant health and public safety issues as the clams were contaminated.  These clams were not consumable, and the offence was different than the one here as it was for the illegal harvesting and sale of contaminated clams.  It was held aggravating that these contaminated clams were advertised and sold for a commercial purpose putting people at risk, including band members.  Mr. Hunt was globally fined $2,000 for Counts 2, 4, and 6, plus one year probation with some prohibitions placed on his ability to harvest clams.

[70]        Crown also cites R. v. Leask (April 15th, 2009) Prince Rupert Registry, Number 25548-1.  Mr. Leask was fined $6,000 plus the sum of $1,790 he received for the commercial sale of fish that was allocated for food and ceremony and social purposes for his band.  The court held he had illegally diverted four percent of the fish allocated to his band.  He had a prior conviction for a similar offence.

[71]        In this case, the Crown contrasts the penalty it seeks with that given to the Yat Ming Enterprises Ltd.  That case is cited as R. v. Yat Ming Enterprises Limited et al (July 22nd, 2016) Vancouver Registry No. 233513-2-C (BCPC).  The corporate defendant pled guilty to Counts 8 and 16 of the Information that is before this court and also to a count on another Information.  The counts arose out of this incident where the corporate entity bought approximately 800 pounds of crab from Mr. Sparrow on March 4th, 2016, for the sum of $3,820.

[72]        In that case, a joint submission was presented to the court and accepted.  The corporate defendant was fined $25,000 each on Counts 8 and 16 plus an additional sum of $22,500 for the count on another information and an ancillary order.  One of the aggravating factors in the joint submission was the negative effect on the environment, taking prawn and crab away from the Squamish Nation fishery, and that the crab came from an area closed to the commercial fishery because of dioxin contamination posing a risk to human health and, again, that is the same facts.

[73]        Defence counsel submitted that the penalty in this case be informed by dicta in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13; and R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723.  While the Crown is not seeking incarceration, defence counsel seeks that at least part of the penalty against Mr. Sparrow be restorative in nature.  She puts forth the case of R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, which details the history of the Musqueam's fishing tradition for salmon and the evolving recognition of First Nation rights under s. 35 of the Charter of Rights and Freedoms.

[74]        Exhibit 6 states that the Musqueam have harvested salmon in what is now the Vancouver area for 3,000 years.  The document also states that several bands have overlapping claims to the area where the crab in question were taken.  These claims have not been resolved internally between the bands or between the bands and DFO, although, again, Chief Sparrow stated that he is hoping negotiations will be underway shortly.

[75]        I acknowledge that this matter was originally set to proceed to trial as the defendants were asserting a s. 35 defence.  They abandoned this defence and instead have accepted responsibility for the offences they have pled guilty to.  Given the guilty pleas, I must apply the applicable statute, Regulations, and case law in regards to this matter.

[76]        I will consider the mitigating and aggravating factors firstly in relation to Mr. Sparrow.

[77]        In terms of mitigating circumstances, Mr. Sparrow pled guilty, and the Crown was able to cancel its witnesses.  Mr. Sparrow also addressed the court at the end of sentencing submissions.  He unequivocally said he took full responsibility for his actions.  He said the offences were motivated by the decline in salmon, that his actions were wrong, and that he will not engage in illegal fishing practices in the future.  Mr. Sparrow also took full responsibility for his nephews' presence during the offences, saving them from going through trial and increasing the length of the court process and negative consequences for them.  Mr. Sparrow cooperated with the DFO in providing the coordinates of where the remaining crab traps were, allowing the crabs within them to be released.  All these factors are mitigating.

[78]        Aggravating factors include that Mr. Sparrow fished illegally for commercial purposes without a licence during a time when the fishery was closed.  It is a further important aggravating fact that the area in question is always closed to commercial fishery due to the dioxin contamination.  The fishing was done at a time when the crabs needed to replenish during the closure to recreational and the Squamish Band's fishing in the area.  During this period, as Chief Sparrow said, crabs are molting.  Their shells are soft.  If they cannot breed, the future of the crab fishery is at risk to all.

[79]        Mr. Sparrow used unmarked cages secured with zap-straps.  This prevented the crabs being released.  The crabs cannibalize each other and cannot get out of the cages if they are not retrieved.  The lack of the crabs' ability to get out of these cages threatens the viability of the crab population.  Mr. Sparrow testified that salmon had declined around the time in question and he knew or should have known as an experienced fisher that the use of zap-straps and harvesting crab during closure threatened the viability of the fishery for the near and distant future.  This is injurious to all involved in the fishery including First Nations.

[80]        The commercial sale of crabs caught in a dioxin contaminated area places the public's health at risk.  Members of the public that bought crab from the market in question would not know where the crab came from or of the contamination.  The impact statements indicate the crab is toxic only if the liver is eaten.  There was evidence that people in certain Asian communities consider the liver a delicacy.  Vancouverites from many cultures have a very diverse taste in terms of food.  The Yat Ming Market is an Asian seafood market and it is more likely their product would be consumed by persons who eat the crab liver as a delicacy.

[81]        I do find that the public health risk here is not as great as the sale of the contaminated clams was in R. v. Hunt.  In that case, the accused was charged with a specific offence of selling contaminated clams.  The counts that the defendants have pled guilty to here does not relate specifically to contamination.  It is an aggravating fact, however, according to the Crown and I agree with this, the onus is on fishers to inform themselves of closures due to contamination.  The crabs were sold for great profit.

[82]        Due to the limited resources of DFO, it is difficult to apprehend persons illegally fishing.  The circumstances in this case are more aggravating because the crab harvesting was done at night, which made it even more difficult and dangerous to know.  A considerable amount of financial resources were used for the operation which led to these charges and convictions.

[83]        Mr. Sparrow does have three prior convictions under the Fisheries Act, although I note the first offence was in 2000 and the last two offences for selling, trading, or bartering fish without a licence were in September 2005.  They were just over 10 years prior to the subject offences.

[84]        The case law provides a broad sentencing range.  There is no set formula for assessing penalty, although some fines imposed appear to be approximately twice the amount of the fish illegally caught.  The maximum fine under s. 78 of the Fisheries Act is $100,000 for each count and/or up to a year in jail.

[85]        The Truth and Reconciliation Commission's Report also provides guidance.  The idea that truth may lead to reconciliation also may mean restoration is germane not only in the context of peoples to each other, but with the lands and oceans.  Mr. Sparrow has acknowledged his responsibility and culpability for these six offences.  He did tell the truth and I accept his sincerity that he will not come before the courts again for these sort of offences.  His offences did cause injury and had the potential to inflict further injury on the crabs in Howe Sound.  He acknowledged he was crab fishing for profit as the salmon season had been poor.  One of the factors likely for the poor season was over-fishing.

[86]        The offences before me reduced the crab population not just from taking the crab, but in reducing the number of crab that could breed.  This put the crab at risk of being decimated just as the salmon had been in the seasons before these offences.  Canadian law does not provide natural resources, such as oceans and mountains, the protection of legal persons as other countries such as New Zealand.  This does not mean, however, that the legal system cannot be used to penalize those that harm them and impose penalties with a restorative purpose.  These offences go further than just fishing in a disputed area given the harm to the crab population and the potential public health risk in commercial sales of these crab.

[87]        I do find Mr. Sparrow is financially able to pay fines.  He works in the fishery and is also, I find, capable of working in the closed season.  Chief Sparrow testified to the ventures the Musqueam is currently involved with and employment opportunities within the Band.

[88]        In terms of fines pursuant to s. 78(a), I find that Mr. Sparrow shall pay fines of $2,500 each for Counts 2, 3, 5, 10, 11, and 13 for a total of $15,000.  Pursuant to s. 79 of the Fisheries Act, Mr. Sparrow is ordered pay a fine of $3,820 being the proceeds of the illegal sale of crab on March 4th, 2014.  The total of these fines is $18,820.

[89]        The s. 78(a) fines may be paid over three years with a minimum first installment of $5,000 being paid by January 30th, 2019; $5,000 being paid by January 30th, 2020; and the last $5,000 installment being paid by January 30th, 2021.  The s. 79 fine of $3,820 is payable in full on or before June 30th, 2018.

[90]        Pursuant to s. 79(2)(e) of the Fisheries Act, it is further ordered that Michael Sparrow be placed on probation, to perform 50 hours of community service work under the direction of a probation officer for one year on the following terms:

[91]        The ancillary orders re notifications re fishing, until January 31st, 2019, if intending to engage in commercial or food, social, or ceremonial fishing in any Pacific Fishery Management Area must:  (1) contact DFO through email address at [omitted for publication] (or his designate) at least six hours prior to the intended departure to report the intention to fish, the vessel name and number on which fishing, and the area of intended fishing; (2) contact DFO through an email address: [omitted for publication] (or his designate) within six hours of the return from fishing to report the number of fish caught, the location of the offload, or if not yet offloaded, the intended time and location of offload.

[92]        Possession of shellfish, until January 31st, 2019, Mr. Sparrow is prohibited from having any shellfish in his possession except: (a) those being caught or transported pursuant to commercial fishing, provided that there has been compliance with the related commercial fishing licence conditions; (b) those caught for food, social, ceremonial purposes provided that there has been compliance with the Aboriginal Communal Fishing License for the Musqueam First Nation; (c) shellfish that has been processed in some other manner, i.e., canned, and is possessed at his ordinary place of residence.

[93]        In regards to Bruce James Grant, Mr. Grant has pled guilty to Counts 10 and 13 of the Information in question.  Mitigating factors are that he has no prior fishery convictions, he has pled guilty, there is no evidence he received profit from these offences, and he was not the guiding mind of the operation.

[94]        Aggravating factors are that he was aware the fishing was done in a closed area and would have negative implications on the sustainability of the crab fishery.  He was aware zap-locks were used on the cages rather than twine.  The fishing was for profit and the crabs were sold for public consumption to a seafood market with no health or safety checks.  He was found to be in possession of money from the market, although it was not kept by him.

[95]        In regards to Mr. Grant's ability to pay a fine, Ms. Humchitt advises he receives $230 a month social assistance.  As previously stated, it is lower than off-reserve because his housing is provided.  The only additional financial information is that he received a large financial settlement in regards to his residential school claim.  While it is stated he has health issues, he is likely to be able to fish or earn some form of remuneration from working part-time in or outside the Musqueam land reserve.  Again, Chief Sparrow did speak of the opportunities that are available for band members in either the property development or other projects that are ongoing.

[96]        In terms of the fine, I am satisfied on a balance of probabilities that Mr. Grant can pay a fine totalling $2,500.  I am fining him $1,000 for Count 10 and $1,500 for Count 13.  All fines are payable on or before January 31st, 2020.

[97]        Mr. Grant is also subject to the same ancillary orders that I previously read out for the notifications re fishing and possession of shellfish in respect to Mr. Sparrow. I delegate that to Madam Clerk to add in and I do have the wording here for her. 

[98]        Is there anything further?

[99]        MS. BALL:  Your Honour, I can advise Madam Clerk that I will be able to do up all of the orders --

[100]     THE COURT:  All right.

[101]     MS. BALL:  -- as Your Honour has determined with the exception of the probation order, of course.  That would be the standard form order that she would be --

[102]     THE COURT:  Yes.

[103]     MS. BALL:  -- doing up for us, and I don't know how we go about having Mr. Sparrow sign that, but of course --

[104]     THE COURT:  Yes.

[105]     MS. BALL:  -- there must be a way.

[106]     THE COURT:  Well, maybe I should -- is he in town, do you know, because I have made the -- his reporting condition by the 21st at 3:00 p.m.

[107]     MS. HUMCHITT:  Yes, he is town.

[108]     THE COURT:  All right.

[109]     MS. HUMCHITT:  He did confirm with me to act as his agent.  I was just going to ask if I could have the written reasons so I could pass it on to him?

[110]     THE COURT:  There -- I will get them done.  They are not in a form right now that I can hand out because I did them myself and I have got handwritten scratches all over them.

[111]     In terms of the probation part, Madam Clerk, were you able to get that?

[112]     THE CLERK:  I am going to have to go back and listen to everything, Your Honour.

[113]     THE COURT:  All right.

[114]     MS. HUMCHITT:  I can facilitate getting these to clients.

[115]     THE COURT:  All right.  Well, why don't I extend the deadline, then, for him to go, because I do not know how long -- do you know how long it would take to get the probation order done?

[116]     THE CLERK:  I don't, Your Honour.  I mean I don't know if they will take it tonight since they are not here to sign.

[117]     THE COURT:  All right.

[118]     THE CLERK:  I just -- I need to stay and get it all into the record.

[119]     THE COURT:  I can give you some chicken scratches that may help you.

[120]     So I will extend his time, then, until Friday at three o'clock.  So it is -- I do not -- which will be he has to appear at the probation office in person at 275 East Cordova Street prior to 3:00 p.m. on Friday, February 23rd, 2018, and I will go through these --

[121]     MS. BALL:  The easiest thing, too, maybe, Your Honour, if we simply order your oral reasons.

[122]     THE COURT:  All right.

[123]     MS. BALL:  Everything will be there and --

[124]     THE COURT:  That is probably quicker.

[125]     MS. BALL:  Yes.

[126]     THE COURT:  All right.

[127]     MS. BALL:  I think that we can get that in fairly short order.

[128]     THE COURT:  All right.  Then I can -- then I will go over them and sign them, the oral reasons.

[129]     MS. HUMCHITT:  Okay, and does Mr. Grant have to report to --

[130]     THE COURT:  No, he is not on -- I did not put --

[131]     MS. HUMCHITT:  He is not on probation.

[132]     THE COURT:  He just -- he has a fine --

[133]     MS. HUMCHITT:  Okay.

[134]     THE COURT:  -- of $2,500 that he has to pay, I believe it was within -- the date on here, 20 --

[135]     THE CLERK:  January 31st, 2020.

[136]     THE COURT:  -- 20.  I think he has two years to pay the $2,500.  All right.

[137]     THE CLERK:  And, Your Honour, just a quick question [inaudible] was the fines for Mr. Sparrow, is that a global fine or --

[138]     THE COURT:  No, I set it out.  It is --

[139]     THE CLERK:  I will go back and listen to it.

[140]     THE COURT:  Yes, I will give you -- I will give you -- it is $2,500 each for Counts -- so $2,500 for Count 2, $2,500 for three, five, 10, 11, and 13.  So it is $2,500 for each --

[141]     THE CLERK:  Per count?

[142]     THE COURT:  -- of the six counts plus pay a forfeiture -- or payback of the $3,820.

[143]     THE CLERK:  Unfortunately, we have to enter each fine individually --

[144]     THE COURT:  All right.

[145]     THE CLERK:  -- for the counts, so I will just go back and listen and get it all.

[146]     THE COURT:  All right.  How does it go to defence counsel ‑- or is it just at the registry or the probation -- would not the probation work --

[147]     THE CLERK:  The file will go to the registry when I am done here [inaudible].

[148]     THE COURT:  Okay.

[149]     MS. HUMCHITT:  Can I request the clerk's notes?

[150]     THE CLERK:  They are not going to be any help to you, because I have -- we just put in, "Reasons for judgment" --

[151]     MS. HUMCHITT:  Okay.

[152]     THE CLERK:  -- and then I get the sentencing in, but --

[153]     MS. HUMCHITT:  Okay.

[154]     THE CLERK:  Yes.

[155]     MS. HUMCHITT:  I am just looking to get something for my clients so that they understand it.

[156]     THE COURT:  Okay.  Okay.  Well, the sentencing provision -- so, for Mr. Sparrow, the fine under s. 78(a) is $2,500 for each count.  So that is $2,500 times six --

[157]     MS. HUMCHITT:  Yes.

[158]     THE COURT:  -- is $15,000 and then, under s. 79, he has to repay the $3,820.

[159]     MS. HUMCHITT:  Yes, I got that.

[160]     THE COURT:  So his fines are -- you have got that --

[161]     MS. HUMCHITT:  Yes.

[162]     THE COURT:  -- the fines?  Okay --

[163]     MS. HUMCHITT:  Yes.

[164]     THE COURT:  -- and then the terms of the probation order --

[165]     MS. HUMCHITT:  He will get that as long as he reports Friday by 3:00 at --

[166]     THE COURT:  By 3:00 p.m., and then the -- I think the probation order should be ready tomorrow.  It will be in the registry for him to come to sign and Crown can let you know how that process works.

[167]     MS. HUMCHITT:  Okay.

[168]     THE COURT:  I think he goes to the registry.

[169]     THE CLERK:  He will go to the registry.

[170]     THE COURT:  Yes, and did you get down the fine for Mr. --

[171]     MS. HUMCHITT:  $2,500?

[172]     THE COURT:  Yes --

[173]     MS. HUMCHITT:  Okay.

[174]     THE COURT:  -- and it is by -- what did I do with the last page?  He has got two years to pay here.  I just lost the last page of this.  Yes, so for Mr. Grant, it is $1,000 for --

[175]     MS. HUMCHITT:  Count 1?

[176]     THE COURT:  Well, it was not Count -- it was -- there were -- what -- they were different count numbers, but ‑‑

[177]     THE CLERK:  Counts 10 and 13.

[178]     THE COURT:  Count 10 is $1,000 and Count 13 is $1,500.  Those fines are payable on or before January 21st, 2020, and so Madam Crown will draft the order --

[179]     MS. BALL:  All the Fisheries Act orders, yes.

[180]     THE COURT:  All right, and do you need any clarification?

[181]     MS. BALL:  I think I have everything.  It is following along the draft I had provided.  The one thing I should clarify is the installments.  I had a note that Your Honour said, for Mr. Sparrow, three years with the first installment of $5,000 by January 30th of 2019 so next year.

[182]     THE COURT:  Yes.

[183]     MS. BALL:  The next installment of another $5,000, January 30th of 2020, and the remainder would be the -- by January 30th of 2021; is that correct?

[184]     THE COURT:  Yes, and then the other -- the $3,820 is due this year on June 30th, 2018.

[185]     MS. HUMCHITT:  Sorry, what is due this year?

[186]     THE COURT:  The -- in regards to Mr. Sparrow --

[187]     MR. HUMCHITT:  $3,000 --

[188]     THE COURT:  -- $3,820 is payable in full on or before June 30th, 2018.  That is the money that was returned.

[189]     MS. BALL:  Yes, that is perfect, and I can do those up and --

[190]     THE COURT:  All right.

[191]     MS. BALL:  -- and send that into the registry.

[192]     THE COURT:  All right.  Madam Clerk, do you want me to leave you this?  I did draft it out.  So I will just leave this and you can give it to me.  It is just chicken scratch.  That is the probation terms, though.  Okay.

[193]     Thank you very much.  Now, did you want me -- so you can get the -- oh, so we will order the reasons, the oral reasons?

[194]     MS. BALL:  I think that is probably the --

[195]     THE COURT:  All right.

[196]     MS. BALL:  -- quickest and easiest --

[197]     THE COURT:  All right, I can try and --

[198]     MS. BALL:  -- to do the oral reasons.

[199]     THE COURT:  -- finalize mine, but you know, there may be some -- I may have said something that was not in my draft, so.

[200]     MS. BALL:  So I think it is best.  We will get the reasons.

[201]     THE COURT:  All right.  All right, thank you.

[202]     MS. HUMCHITT:  Thank you.

[203]     MS. BALL:  Yes, thank you, Your Honour.

[204]     THE SHERIFF:  Order in court.