IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Red sea urchins are spherical, with a diameter of up to 18 centimetres and pointy spines reaching 7 to 8 centimetres long. They are a traditional food for British Columbia coastal First Nations, who also harvest them for social and ceremonial purposes.

[2]         British Columbia is home to Canada's only commercial red sea urchin fishery. SCUBA divers harvest red sea urchins and deliver them to processing plants, where the roe is extracted, treated and packaged for sale in Japan, Europe and North America as "Uni."

[3]         Red sea urchins often live in ocean depths from 4 to 18 metres, in or near underwater kelp beds. SCUBA divers harvest them using a tool referred to as a "rake." SCUBA divers collect the red sea urchins and place them in a mesh bag that, once full, can be sent to the surface with a float.

[4]         In British Columbia, SCUBA divers who commercially harvest red sea urchins are typically paid based on the number of red sea urchins they harvest. As a result, the focus of the SCUBA divers is on gathering the maximum number of red sea urchins available in a particular location.

[5]         On October 16, 2018, 26 year-old Andrew Connor Brown, an occupational SCUBA diver employed as a red sea urchin harvester with the vessel Diver City, drowned one meter below the surface in the Hecate Strait, approximately 200 kilometres south of Prince Rupert, British Columbia. Known by his middle name Connor, he grew up in Ontario. The youngest son of Jane and Ted Brown, Connor loved life and had a great sense of adventure. By all accounts, Connor was an eager, energetic, empathetic, loyal and caring person. He had a big grin, a keen sense of humour, and a good work ethic, he was fun to be around. He grew up on the water, was a competent swimmer, and had his boating licence in Ontario at the earliest age possible. Connor's girlfriend Kris, his parents, two older brothers, grandparents, aunts, uncles, cousins and friends loved him dearly. Approximately 600 people attended his celebration of life.

[6]         Michael McGee, Connor's co-worker and fellow red sea urchin harvester, found Connor unresponsive and entangled in kelp. Ninety-one minutes had passed since Connor had entered the ocean. Connor's SCUBA equipment was only on one shoulder, consistent with an attempt at self-rescue.

[7]         Connor was working on a three-person crew that included Mr. McGee and the master of Diver City, the defendant Eric Joseph Blackburn. 678531 BC Ltd. owned Diver City. Michael Harvey Juergen Steinmann was a director of 678531 BC Ltd.

[8]         Dr. Jason Doyle, a pathologist, performed Connor's autopsy. He determined the cause of death to be drowning as there was no evidence of an embolism or decompression illness.

[9]         Forensic examination of Connor’s diving equipment found it was working correctly. His air tank was two-thirds full, with air suitable for breathing. Connor's dive watch showed that his dive had been shallow, with a maximum depth of 6.1 metres, and that he had been one metre below the surface for approximately 70 minutes before Mr. McGee brought him out of the water. Connor's dive watch also confirmed he last surfaced 14 minutes into his dive.

[10]      It remains a mystery why Connor, a fully qualified occupational SCUBA diver, drowned at a depth of one meter, with two-thirds of the air in his tank remaining.

[11]      What we do know is that to mitigate the risks to their employees, in October 2018, all British Columbia employers of commercial SCUBA diving operations were subject to the Workers Compensation Act, RSBC 1996, c. 492 (“the Act”) and the Occupational Health and Safety Regulation, BC Reg 296/97 (“OHS regulation”). As such, a procedure to enable an underwater diver in distress to be immediately identified and assisted, consistent with Part 24 — Diving, Fishing and Other Marine Operations of the OHS regulation, was required to be operative on all commercial vessels. On October 16, 2018, the crew of the Diver City, supervised by Mr. Blackburn, failed to use any such procedure.

[12]      Mr. Blackburn and Mr. McGee did not know when or for how long Connor was in distress because Connor and Mr. McGee were not in visual contact as required by the OHS regulation. According to his “dive profile” (the computerized record of the dive), Connor was at the surface from the 14 to the 16 minute mark. He was changing depths for about 6 more minutes until the 22 minute mark when he stopped moving. Connor's dive watch confirmed that he surfaced twice in the 91 minutes he was in the ocean: first, 2 minutes after he entered the water and again 12 minutes later. The maximum depth on Connor's diving watch was 6.1 metres, which is shallow for SCUBA diving. At the 21 minute mark, Connor stayed at the same depth until his body was recovered at the 91 minute mark. Mr. McGee and Mr. Blackburn began looking for Connor 46 minutes after he stopped changing depths. When they started looking for him, Connor had likely already drowned.

[13]      Almost 22 months after Connor's tragic and avoidable death, Mr. Blackburn, along with 678531 BC Ltd. and Mr. Steinmann, were charged in connection with Connor’s death.

[14]      On May 2, 2022, some 42-plus months after Connor’s death, Mr. Blackburn, in his capacity as Connor's diving supervisor, entered guilty pleas to counts 2 and 5 of the information:

[15]      Prince Rupert Community Corrections Probation Officer Duong Nguyen completed a comprehensive Pre-Sentence Report concerning Mr. Blackburn on October 27, 2022. I heard sentencing submissions from counsel on November 1, 2022.

[16]      Mr. Blackburn admits that he failed to ensure the health and safety of workers contrary to s. 117 of the Act. As the supervisor of the Diver City, Mr. Blackburn admits he was not, as required by s. 117 of the Act, knowledgeable about the provisions of Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation. As a result, he failed to comply with those provisions.

[17]      Mr. Blackburn admits he was not qualified or sufficiently trained to act as a diving supervisor. Being unfamiliar with Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation, Mr. Blackburn did not require divers under his supervision to comply with the provisions. Mr. Blackburn told the RCMP: “I didn’t even know half of these regulations were there.” He told the RCMP that he would read Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation before he went back out.

[18]      Mr. Blackburn admits that on October 16, 2018, he failed to direct the dive operation as follows:

[19]      Mr. Blackburn admits telling the RCMP that:

[20]      Mr. Blackburn admits that because the divers were permitted to dive without a safety system, there was no system in place as required by OHS Regulation to enable a diver in distress to be immediately identified and assisted. Because no safety system existed, he did not know when Connor became distressed, and no attempt to rescue occurred until Connor had been in the water at the same depth for over 70 minutes.

[21]      The sentencing is contested.

[22]      The BC Prosecution Service seeks a $25,000 fine, the mandatory 15 percent victim surcharge levy, and two years of probation.

[23]      Mr. Blackburn, born in July of 1961, is unemployed due to ongoing psychological and physical medical issues. With little, if any, assets, he seeks a restorative justice-type sentence without a hefty fine.

[24]      678531 BC Ltd. was the employer of Mr. Blackburn, Mr. McGee, and Connor. Mr. Steinmann hired Mr. Blackburn as the master and diving supervisor for Diver City. A vessel master employed by 678531 BC Ltd. hired Mr. McGee as a red sea urchin diver in September 2017. Mr. Steinmann hired Connor in September 2018 as a red sea urchin diver. Connor was the only one of the three certified by the Diver Certification Board of Canada as a SCUBA diver.

[25]      When Mr. Steinmann hired Mr. Blackburn, he knew Mr. Blackburn was not qualified in SCUBA diving and did not have the required training or certifications of a diving supervisor. Mr. Blackburn was initially employed as the vessel master to operate the Diver City, not as the diving supervisor. Mr. Blackburn began acting as the diving supervisor when Mr. Steinmann was not on board the vessel.

[26]      During his time with 678531 BC Ltd., Mr. Blackburn did not seek or undertake the necessary training to become a Diver Certification Board of Canada certified SCUBA diver or diving supervisor. The result, which should have been evident to 678531 BC Ltd. and Mr. Blackburn, is that Mr. Blackburn was in no way, shape or form qualified on October 16, 2018, to act as a diving supervisor.

[27]      When 678531 BC Ltd. hired Mr. McGee in September 2017, Mr. McGee did not have the required qualification or certification to act as an occupational SCUBA diver. Mr. Steinmann was unaware and did not confirm whether Mr. McGee was a qualified occupational SCUBA diver or if Mr. McGee had the required Diver Certification Board of Canada SCUBA diver certifications.

[28]      Mr. Steinmann only went on one dive with Connor. It was on Connor's first day of employment. He reviewed with Connor procedures on the Diver City. Mr. Steinmann told Connor that when fishing for red sea urchins, he had to be close enough to see the other diver in the water. Mr. Steinmann did not tell Connor that when buddy diving, OHS Regulation required that he maintain constant physical or visual contact with the other diver. After Connor's first day working for 678531 BC Ltd., Mr. Steinmann delegated all supervision of Connor to Mr. Blackburn. Mr. McGee and Mr. Blackburn were entrusted with the remainder of Connor's on-the-job training.

[29]      Mr. Blackburn had no formal training, qualifications or certifications from the Diver Certification Board of Canada or any other accreditation agency. He was not a SCUBA diver. He did not have any first aid or oxygen therapy training as required by the OHS Regulation. He had roughly 40 years of experience operating and maintaining fishing boats. While on the ocean, operating and maintaining fishing boats is a very different industry than commercial SCUBA diving or the red sea urchin fishery. Mr. Blackburn was not qualified, educationally or practically, to sufficiently carry out his duties as the diving supervisor of the Diver City.

[30]      Sections 1 and 106 of the Act sets out the definition of employer. Section 1 defines an employer as:

[31]      Section 13 defines an employer as:

[32]      As the master of Diver City, Mr. Blackburn met the statutory definition of being Connor's and Mr. McGee's employer. Section 115 of the Act sets out the general duties of employers. It requires all employers to provide their workers with the information, instruction, training and supervision necessary to ensure the health and safety of those workers in carrying out their work and to ensure the health and safety of other workers at the workplace.

[33]      Although Mr. Blackburn meets the statutory definition of being Connor's employer, the BC Prosecution Service and Mr. Blackburn have agreed that Mr. Blackburn is to be sentenced in his role as Connor's supervisor and diving supervisor.

[34]      Section 117 of the Act requires all supervisors to know and comply with the Act and the Regulation applicable to supervised work. Section 117 of the Act states:

[35]      Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation is the section of the regulation dealing with commercial SCUBA operations. Section 24.1 in the definitions section states:

[36]      As Connor's and Mr. McGee's diving supervisor, Mr. Blackburn needed to know and comply with Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation, which set out the duties and responsibilities of a diving supervisor. Sadly, he neither knew nor complied with Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation.

[37]      On October 16, 2018, Connor and Mr. McGee entered the water at about 09:30 hours. They began harvesting red sea urchins in shallow water at the edge of a kelp bed near Dewdney Island, British Columbia. As of October 16, 2018, Connor had harvested red sea urchins on the Diver City for 20 days, resulting in a total of about 50 hours of work underwater as an occupational diver.

[38]      Connor and Mr. McGee dove separately. Neither used a lifeline or tether. They were not in constant physical or visual contact with each other or Mr. Blackburn. The only time Connor and Mr. McGee saw each other underwater was when they happened to collide with each other. While underwater, they did not use any signal or audio device to communicate with each other or Mr. Blackburn. The only exceptions were the sound transmitted by Mr. Blackburn pounding on the Diver City hull and the divers' ability to use their urchin rakes to make sounds underwater.

[39]      After dropping Mr. McGee off in the ocean, Mr. Blackburn took Connor 45 to 60 metres away from Mr. McGee on the other side of a kelp bed. Mr. Blackburn positioned the Diver City in between the divers. The idea was that Mr. McGee and Connor would work toward each other as they harvested red sea urchins. They were not buddy diving. Given their distance, the divers were not in constant physical or visual contact underwater. Their method of diving was contrary to the OHS Regulation.

[40]      Mr. McGee filled one bag with red sea urchins in the first 18 minutes. He then surfaced and gave the bag to Mr. Blackburn, who put the load on the deck of the Diver City. Mr. McGee continued fishing. Some 18 minutes later, at about 10:06 hours, Mr. McGee came onto the Diver City for approximately 5 minutes. On board, neither Mr. McGee nor Mr. Blackburn could see Connor. They did not know where he was. Mr. McGee re-entered the ocean on the other side of the kelp bed about 60 to 90 metres from where he had surfaced 5 minutes earlier.

[41]      As Mr. Blackburn was moving Mr. McGee to the new location, he saw Connor surface. Connor shouted out “Blackie” – a nickname Connor used for Mr. Blackburn – and then Connor went back underwater. It was the last time anyone saw Connor alive.

[42]      Mr. Blackburn completed his drop of Mr. McGee and then returned to the approximate location where he had seen Connor surface. When Mr. Blackburn arrived at the approximate spot where he had seen Connor surface, he could not find Connor's air bubbles. Mr. Blackburn began searching the area, back and forth, looking, without success, for air bubbles. He continued searching from the vessel. In Mr. Blackburn's experience, it was not uncommon for Connor to return underwater after surfacing if he could see that Mr. Blackburn would be a minute or two getting to him.

[43]      Mr. McGee surfaced approximately 21 minutes later, having filled a second mesh bag with red sea urchins. Sixty-two minutes had passed since he had first entered the water. Mr. Blackburn picked Mr. McGee up, and together they began looking for Connor. Believing that Connor may have swum around the island, they looked for Connor's bubbles from the vessel. Mr. Blackburn advised Mr. McGee that he was unable to locate Connor.

[44]      Twenty-four minutes later, with no sign of Connor, Mr. McGee decided to go back into the ocean to look for Connor near where Mr. Blackburn last saw Connor. Once Mr. McGee entered the water, he almost immediately saw Connor upside down, his legs tangled in the kelp at the knee. Connor's equipment was still intact, holding Connor in the inverted position. Mr. McGee did not have a knife. Nor did Connor. He resurfaced and got a knife from Mr. Blackburn. Mr. McGee dove back into the water. He cut Connor out of the kelp and unhooked Connor's remaining equipment. Mr. McGee brought Connor to the surface. Once on the Diver City, Mr. McGee and Mr. Blackburn began CPR. They were unable to resuscitate Connor.

[45]      At 11:08 hours, Mr. Blackburn called a “mayday” into the Coast Guard. Mr. Blackburn reported Connor's drowning and the location. A Coast Guard vessel arrived. Coast Guard members tried performing CPR and transferred Connor to their ship. Paramedics, arriving later by helicopter, pronounced Connor dead at 13:42 hours.

[46]      Mr. McGee and Mr. Blackburn provided the RCMP with the coordinates of the location of Connor's SCUBA equipment that remained underwater. The Coast Guard transported Connor's body and personal effects to Prince Rupert.

[47]      Mr. Steinmann’s understanding of buddy diving was limited to requiring that the divers be close enough to see each other underwater. He did not know or appreciate that they had to maintain constant physical or visual contact and that if they lost that contact, both must surface immediately.

[48]      Mr. Steinmann based his instruction to Mr. Blackburn and Connor on his flawed understanding of buddy diving. His instructions to them did not include any training or education that when employing the buddy diving safety system, buddy divers must remain in constant visual or physical contact and, if broken, both divers were required to surface immediately.

[49]      In spite of employing Mr. Blackburn as a diving supervisor, 678531 BC Ltd. did not require Mr. Blackburn to read or be familiar with Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation, even with Mr. Steinmann knowing Mr. Blackburn had no SCUBA training or experience. Consequently, Mr. Blackburn was unaware of the rules governing the use of buddy diving. Furthermore, Mr. Blackburn elected not to educate himself despite taking the job with 678531 BC Ltd. as a diving supervisor, notwithstanding the obvious possible fatal outcomes should something go wrong in the water.

[50]      Mr. Blackburn explained his understanding of buddy diving to RCMP investigators as “line of sight”. He understood this to mean that the divers, once surfaced, had to be able to see him, not that the divers had to be in constant visual or physical contact with each other and both surface immediately if they lose that contact. In this respect, Mr. Blackburn told the RCMP that he believed his responsibility as a diving supervisor was limited to monitoring the location of the divers when they surfaced.

[51]      Parts 24.33 to 24.35 of the OHS Regulation set out the specific rules about when and how buddy diving can be employed. The OHS Regulation requires continuous monitoring during every dive operation to ensure divers in the water are safe: a dedicated tender from the marine vessel or another diver in the water. Buddy diving intends to ensure divers can provide emergency assistance to one another without delay. The latter method is called “water standby,” or buddy diving.

[52]      Part 24.33 requires that before a diving supervisor can allow divers to employ the buddy system, the supervisor must, among other requirements, ensure the divers are close to each other at all times to be able to effect a rescue. When using SCUBA, the divers maintain constant physical or visual contact with each other. A dive supervisor cannot employ buddy diving when any hazards are present. Hazards include the possibility of entanglement with underwater objects, like a kelp bed.

[53]      Part 24.35 requires divers employing the buddy system to always remain in constant visual or physical contact and for each diver to surface immediately if they lose contact.

[54]      While being interviewed by the RCMP, Mr. McGee stated that, in theory, he and Connor were dive buddies, but, in practice, they were so far apart that they never saw each other. He stated that the only time he saw Connor was when they happened to collide. They would surface and find a new area when that happened because “we picked this one clean”.

[55]      Mr. McGee also told police that “each guy is his own entity” on a vessel and that when on a boat, “I’m doing my job, and he’s doing his”. Mr. McGee stated that each diver is responsible for their own safety. Very troubling, he further remarked that practicing buddy diving in the urchin industry is impractical.

[56]      Mr. McGee and Mr. Blackburn both told police that they believed the dive on October 16, 2018, was a buddy dive or, as Mr. Blackburn referred to it, a “line of sight” dive. Nevertheless, Connor and Mr. McGee were sometimes over 60 metres apart and not in visual or physical contact with each other or Mr. Blackburn. There was no other safety system, such as audio communication as required by legislation or a lifeline to the diver's tender. There was no system in place to monitor the divers while underwater. Connor had no way to signal his distress to Mr. McGee other than potentially banging his urchin rake on a rigid metallic surface. He had no way to signal his distress to Mr. Blackburn other than knocking on the hull of Diver City.

[57]      On October 18, 2018, divers with the RCMP underwater recovery team recovered Connor’s remaining dive equipment, including his SCUBA tank and its attached regulator. They found the equipment ensnared in a kelp forest reef. On the ocean floor below, RCMP divers found Connor's weighted dive vest, mesh urchin bag and urchin rake. His mesh urchin bag contained very few urchins.

[58]      Connor's SCUBA tank had 2000 psi of air, consistent with it being two-thirds full of air. Chemical testing of the air in Connor's SCUBA tank found it suitable for breathing. A SCUBA expert examined Connor's dive equipment and determined it was functioning correctly.

[59]      Section 24.38 of the OHS Regulation lists the equipment that commercial SCUBA divers must use, including a suitable knife, exposure suit and an inflatable Buoyancy Control Device. An inflatable Buoyancy Control Device provides a diver with more positive buoyancy than relying solely on inflating their dry suit.

[60]      The diving supervisor is required to ensure divers can function safely underwater. Before diving begins, the diving supervisor must confirm that the diver has all the necessary SCUBA and safety equipment. Neither Connor nor Mr. McGee dove on October 16, 2018, with an inflatable Buoyancy Control Device. The dry suit used by Connor was an exposure suit containing an air valve that allowed the suit to be used as a buoyancy device. Connor also used a back plate that supports the air tank but does not assist with controlling buoyancy.

[61]      Mr. McGee was not carrying a knife when he found Connor entangled in the kelp. Connor did not have a knife on his person. Mr. Blackburn told police that he told his divers to carry knives but confirmed that on October 16, 2018, he saw Connor’s knife on the deck of the Diver City.

[62]      Mr. McGee, Mr. Blackburn and Mr. Steinmann were all aware of the hazards posed by kelp. Mr. McGee told police that historically he expects ninety percent of divers usually did not carry knives because there was no kelp in prior years, but this year, “it’s everywhere”. Steinmann told police, “when we’re down SCUBA diving, this is an inherent risk ... when we get caught in kelp, we have knives we cut ourselves out, if you don’t have a knife if you can’t reach it or something, I’ve chewed myself out of a piece of kelp”.

[63]      Section 24.18 of the OHS Regulation requires every commercial SCUBA diving operation to have an assigned diving supervisor. The section describes a diving supervisor's responsibilities to evaluate hazards, plan the dive, brief the crew, ensure all needed equipment is available and in good working condition, and control the entire diving operation. The section also requires a diving supervisor to prepare a detailed plan of the diving operations which must be given to the worksite employer before diving commences. Finally, the section requires that the diving supervisor remains in the dive area during diving operations, delegates the supervisory responsibilities to another diving supervisor if necessary to enter the water and suspends diving operations if conditions become unsafe.

[64]      Section 24.10 of the OHS Regulation required 678531 BC Ltd. and Mr. Blackburn to ensure that each diver had a current medical certification for occupational diving from a physician competent in diving medicine before starting a diving operation. Only Connor had the current medical certification.

[65]      Section 24.12(3) of the OHS Regulation required Mr. Blackburn, the diving supervisor, and Mr. McGee and Connor, the divers, to be trained in CPR, oxygen (O₂) therapy, and diving accident management. Neither Mr. Blackburn nor Mr. McGee had any such training. Connor was the only member of the Diver City crew with the required training.

[66]      Section 24.13(1)(a) of the OHS Regulation required the employer and the diving supervisor to ensure all divers met the minimum requirements of the Canadian Standards Association's Competency Standard (CSA Z275.4-97) Competency Standard for Diving Operations. The Diver Certification Board of Canada audits and accredits occupational diver training establishments which can provide training which will allow candidates to achieve the competencies required by s. 24.13(1)(a). Connor was accredited as an occupational diver in 2017. Mr. McGee, while a long-time SCUBA diver, had no formal training in occupational SCUBA and was not accredited as an occupational diver. In other words, neither Mr. Blackburn nor Mr. McGee should have been involved in harvesting red sea urchins on October 16, 2018.

[67]      Section 24.14 requires each diver, and each dive supervisor, to keep a diving logbook. The diving supervisor is required to sign each diver's logbook. Police seized Connor's dive logs which contained no record of any dives he completed on the Diver City. Mr. McGee advised that he kept fishing logbooks but did not keep dive logbooks. Mr. Steinmann stated that no one makes divers print out manuals and sign them daily. He noted the divers are supposed to write all the daily things in their logbooks, but "they’re not doing it".

[68]      Section 24.19 of the OHS Regulation requires the diving supervisor to conduct a safety briefing before each dive. The topics to be covered during the meeting include hazards which may be encountered during the dive, the intended duration of the dive, the maximum depth to be reached, decompression procedures to be followed, the location of other divers, the work to be done, specific recall signals, and emergency procedures to be followed. While Mr. Blackburn did discuss the areas of the dive and conditions of currents and tides before dives, the briefing he conducted on October 16, 2018, was deficient in that it did not include a safety plan to have Mr. McGee and Connor stay in constant visual or physical contact and, if physical or visual contact was broken, that Mr. McGee and Connor had to surface immediately.

[69]      Mr. Blackburn did not have his Small Vessel Operating Proficiency certification and was, therefore, non-compliant with the Marine Personnel Regulations of the Canada Shipping Act, S.C. 2001 c. 26.

[70]      The Diver City returned to Port Edward via tow on October 17, 2018. It was at the public pier, unattended for two days. The RCMP seized the Diver City, pulled it out of the water, and secured it at their compound on October 18, 2018. Police obtained a Warrant to Search, authorizing them to search the Diver City. Transport Canada assisted with the search and found the following safety and equipment deficiencies:

[71]      Victim Impact Statements assist the Court in assessing the gravity of the harm arising from the offence.

[72]      Connor's parents prepared and read Victim Impact Statements to the Court. Their incredible love for their son is evident in their words, as is their desire to see something positive come from his death. The pain they both have experienced over the past 52 months cannot be expressed in words. I am told, and I accept, that Connor's girlfriend Kris, his brothers, other relatives, and many friends still miss and grieve for him.

[73]      A sentencing is not the same as a coroner's investigation or inquest. In their Victim Impact Statements, Jane and Ted expressed their desire for a coroner’s investigation or inquest into Connor’s death. Coroner investigations and inquests are entirely different from criminal or regulatory offence prosecutions. As explained on the British Columbia Coroners Service website, there are distinct procedures for coroner’s investigations and inquests.

[74]      In the case of a coroner’s investigation, when a death is reported to the coroner, they have the authority to collect information, conduct interviews, inspect and seize documents and secure the scene. Upon conclusion, the facts determined by the investigation are released in a report. It sets out the coroner's findings, including a cause of death and, whenever possible, recommendations to prevent future deaths.

[75]      If the Chief Coroner determines that it would be beneficial for:

[76]      On the other hand, an inquest is mandatory if the deceased was in the care or control of a peace officer at the time of their death unless the Chief Coroner exercises the discretion provided under Section 18 of the Coroners Act.

[77]      An inquest serves three primary functions:

[78]      The presiding coroner ensures the jury maintains the goal of fact-finding, not fault-finding. A Verdict in the form of a written report is prepared upon the inquest's conclusion. It includes the classification of the death and any jury recommendations on how to prevent deaths in similar circumstances.

[79]      The BC Coroners Service investigates over 5,000 deaths annually. Of that number, less than one percent result in an inquest. While every death represents the loss of a loved one, inquests are not routine. On average, British Columbia has only 8 to 14 inquests per year.

[80]      Putting into words how she and others have been affected by Connor’s death was a stressful and daunting task for Jane. As she pointed out, waiting more than four years for the court process to conclude kept taking her back to the beginning and all the traumatic feelings. Some excerpts from Jane’s reading of her Victim Impact Statement gives perspective to the profound impact Connor’s death has had on her and to her desire to see positive change in the red sea urchin harvesting industry:

[81]      Ted has also experienced a keen sense of loss since Connor's passing. Like Jane, he has struggled with the reality not only of Connor no longer being with us but the apparent lack of interest from the BC Coroners Service, government and the red sea urchin industry to bring commercial SCUBA diving in British Columbia into the 21st Century. Some excerpts from Ted's reading of his Victim Impact Statement give insight and provide context to the Court:

[82]      As set out by Judge Joyal, as he then was, in the first sentence of paragraph 45 in R. v. Clearwater Electric Ltd., [2001] M.J. No. 101:

[83]      The Pre-Sentence Report prepared by Mr. Nguyen and the submissions of defence counsel has enlightened the Court about the realities of Mr. Blackburn's life.

[84]      He was born in Nanaimo, British Columbia. One of three children, as a pre-schooler, Mr. Blackburn lived on a farm outside Nanaimo that his grandfather owned. At the age of six, his family moved to Nanaimo. His parents separated when he was eight. After his parents' separation, Mr. Blackburn lived with his mother. His older brother, having blamed their mother for the family issues, moved in with their father. Mr. Blackburn lived with his mother for about a year before yearning to be with his brother and father. His mother agreed that Mr. Blackburn would benefit from having his father involved more in his life, and he moved without issue.

[85]      His father was an alcoholic who drank frequently but was not neglectful or abusive. Mr. Blackburn was sometimes required to drive his father home from the bar or social events even before he was fully licensed to operate a motor vehicle. Mr. Blackburn describes his father as a kind and hard-working man who made his living as a professional entrepreneur. His father held investments in real estate in British Columbia and the USA. He built and sold various companies, from taxi dispatch to marine lumber reclamation. Mr. Blackburn attributes his work ethic to his father, who always encouraged and pushed him to be successful and productive. His father's devotion to work negatively affected his relationships, and Mr. Blackburn believes he also inherited this flaw. He believes his parents' failed marriage resulted from his father's drinking and absences from home due to work.

[86]      Mr. Blackburn remained engaged with academics and was heavily involved with hockey during his youth. He graduated high school and achieved his grade 12 diploma. His goal had been to play hockey professionally, but his dreams ended when, at age 19, he suffered a catastrophic knee injury during a hockey game. Afterwards, Mr. Blackburn fell into his second passion, automotive mechanics. He obtained an automotive apprenticeship at Dennis Paugh Motors and completed his four-year Red Seal certification in automotive mechanics. Mr. Blackburn also engaged in the commercial fishing industry in the following years, harvesting various products.

[87]      Mr. Blackburn met his first and only wife in Port Hardy when he was eighteen. They had a son together, now age 35. His relationship with his wife lasted about 10 years. Mr. Blackburn cites his frequent absences from home due to work and his alcoholism as significant issues in the relationship. Mr. Blackburn remained involved in his son’s life and had parenting time every second weekend. His time with his son involved camping, fishing, and taking him to a mechanics shop to show him trade skills.

[88]      In 1983, Mr. Blackburn and his brother bought a gillnetter vessel for commercial fishing. Mr. Blackburn went between automotive work and fishing, but within three years, their boat was caught in a storm and sank. Afterwards, Mr. Blackburn continued alternating seasonally between automotive and fishing work. He also moonlighted extra mechanic work by renting a shop with his brother, a welder by trade.

[89]      At 27, Mr. Blackburn and his brother bought their own automotive mechanics and welding shop. Their business lasted about two years before the divorce with his wife forced him to sell off his interest in the company. Mr. Blackburn credits the sale as a significant reason why he has not spoken to his brother for several decades.

[90]      At age 29, Mr. Blackburn relocated to Prince Rupert, and he has remained in Prince Rupert since then, working primarily as a mechanic or fisherman. As a result of his relocating to Prince Rupert, his contact with his son lessened and became sporadic. They have, however, maintained contact over the years through phone calls and texting.

[91]      In 1992, Mr. Blackburn began an 8 year relationship with the mother of his second child, his daughter. Mr. Blackburn also has two stepdaughters from the relationship. Drug and alcohol use was frequent during the relationship by both Mr. Blackburn and his partner. The Ministry of Children and Family Services became involved and apprehended all three girls. The girls ended up in the foster care system. Initially, Mr. Blackburn thought about applying for custody of the three girls but realized his lifestyle was inappropriate for raising children. Mr. Blackburn believes he made the right choice and that his daughter is living a good life, but they have drifted further apart over the years.

[92]      Mr. Blackburn's subsequent relationship has been with a woman he has been with on-and-off for the last 17 years. He considers her a positive influence in his life, though her children disapprove of him. Mr. Blackburn is unsure of the reason for her children's dislike of him. According to defence counsel, the relationship is currently “off”.

[93]      Over the years, Mr. Blackburn has continued alternating between fishing and automotive work but has primarily gravitated towards fishing as it can be much more lucrative in relation to the amount of effort put in. He describes himself as a workaholic. However, since he makes a percentage of what the vessel makes, there are days when he works for free if the harvest is bad.

[94]      Mr. Blackburn currently owes about $100,000, between back taxes and credit cards. Now unemployed, he is hopeful of returning as a supervisor in the commercial diving industry once his health improves and the Court case is behind him.

[95]      Mr. Blackburn has not been diagnosed with any mental disorder or disability. However, since Connor's death, Mr. Blackburn believes he has had post-traumatic stress disorder (PTSD). Connor's death weighs heavily on his mind, and Mr. Blackburn can still recall the time spent giving Connor CPR until the Coast Guard arrived. He thinks about the incident daily and reports that it affects all aspects of his life, from his finances to his relationships.

[96]      Mr. Blackburn's friends and family have told him that his personality has changed from jovial to more serious. He had no vitality and appeared haunted, often staring off for long periods. Mr. Blackburn was emotionally traumatized but refused to engage with anyone and refused to speak of what happened. Mr. Blackburn's son explained to Mr. Nguyen that shortly after Connor's death, his father returned to Nanaimo for a time and was “really messed up”.

[97]      Over the years, Mr. Blackburn has slowly rebounded and has been able to talk about October 16, 2018. While Mr. Blackburn's efforts in burying and ignoring his emotional turbulence have not worked, he is now more receptive to getting help. He has reached out to WorkSafeBC to get funding for PTSD therapy and told Mr. Nguyen that he intends to continue seeking PTSD therapy after the court case has concluded.

[98]      Mr. Blackburn's alcohol use was consistent as a youth; before he was 17, he had accrued three impaired driving infractions. Mr. Blackburn states that his alcohol use was “heavy drinking” for a large portion of his adulthood, where he could consume up to a case of beer and a 26-ounce bottle of spirits in an evening. Mr. Blackburn told Mr. Nguyen that he had “a lot of fun” during those years and has no regrets.

[99]      Mr. Blackburn maintained heavy alcohol use up until about the age of 45, when he slowed down. In his younger days, he had built up a reputation with the RCMP for being aggressive. While Mr. Blackburn acknowledges that many of his life troubles have been caused by alcohol use, he has never engaged in counselling or treatment. During his twenties, his father took him to Alcoholics Anonymous to help him and his marriage, but it was not helpful for Mr. Blackburn. Currently, Mr. Blackburn consumes about one to three beers a day. He does not feel his alcohol use is an issue.

[100]   Mr. Blackburn has experimented with acid, mushrooms, powder cocaine, and crack cocaine. Because his on-and-off partner disapproves of illegal drugs, over the past 17 years, he has had to sneak his drug use, reducing his frequency of use. The only illicit drug he uses regularly is crack cocaine, which was at its peak during his relationship with his daughter's mother. However, since Connor's death, Mr. Blackburn reports that his crack-cocaine use has worsened considerably. He believes he has been self-medicating with drug use.

[101]   Mr. Blackburn has a criminal record with a single entry from 2005 for Wilful Resist/Obstruct Peace Officer. During his three-month Suspended Sentence, Mr. Blackburn was referred to anger management but refused to comply. He told his probation officer that he had done similar programs in the past and did not find them helpful and was too busy with work. Mr. Blackburn also failed to complete his 20 hours of community work service, but BC Corrections decided it was not in the public interest to breach him on either issue. His probation officer noted that Mr. Blackburn's reporting was consistent. To Mr. Nguyen's knowledge, Mr. Blackburn never followed through with alcohol and drug counselling.

[102]   Mr. Blackburn thinks about Connor daily, and Connor's death still profoundly affects him. He described Connor to Mr. Nguyen as a “good kid” who worked hard to gain Mr. Blackburn's approval, which was why he greatly liked Connor. Mr. Blackburn takes his failure everywhere with him and blames himself for not being trained in 2018 as a diving supervisor. He acknowledges that he relied too heavily on his experience working in various fisheries and the success he enjoyed on his first red sea urchin harvesting trip. It was highly successful, bolstering his confidence as a fisherman and deterring any efforts to become more educated.

[103]   Since Connor's death, being on the water and supervising divers has caused much anxiety for Mr. Blackburn. Furthermore, he continues to play the events in his mind regularly and suffers nightly nightmares. Mr. Blackburn wonders if, despite the autopsy result, an embolism caused Connor's death. He finds sleep to be hard to come by. He has not slept well since the fatality.

[104]   Despite living on a moored boat named Chilko Lake, Mr. Blackburn has reached the point where he does not trust himself to leave the pier on a vessel. Chilko Lake was built in 1951. He found the Chilko Lake sinking five years ago. He pulled her up and ended up paying the owner $10,000 for the vessel, although it is worth far less today. It's not seaworthy, but he lives on it at the Fairview Dock in Prince Rupert, where he owes over a thousand dollars in moorage fees. Although moorage fees cover his electricity, he still has to buy diesel for the pumps to keep the vessel above water.

[105]   Mr. Blackburn is now not employed at all. He is collecting $339 monthly from his Canada Pension Plan retirement pension. His physical health challenges include arthritis, hypertension, muscle and connective tissue wasting, especially in the left hand, and chronic alcoholism, which, for the most part, he seems to have under control. The wasting in his left hand and wrist stops him from being able to grip objects in his left hand. He has been trying to get medical assistance, a universal challenge for all residents of Prince Rupert and surrounding communities. The current combination of his physical and mental health challenges means that Mr. Blackburn cannot work on a sea vessel.

[106]   While Mr. Blackburn fully accepts his responsibility and part in Connor's death, he remains critical of some diving regulations, telling Mr. Nguyen that the OHS Regulation does not effectively reflect the reality of diving work. He believes better technology should be implemented and made mandatory on diving vessels.

[107]   In British Columbia, Crown Counsel is responsible for approving charges. The BC Prosecution Service has policy in place to guide prosecutors with their charge approval function. In cases such as the present, Courts are not told why the BC Prosecution Service decided to pursue regulatory charges instead of criminal ones. Offences contrary to the Act and the OHS Regulation are a subset of regulatory offences known as public welfare offences. Mr. Blackburn has pled guilty to two public welfare offences. In R. v. Kalia Resources, 2022 BCPC 304, Judge Reeves set out the basic framework for distinguishing regulatory and criminal offences. He stated:

[108]   Unlike the Criminal Code, which encompasses an entire regime concerning sentencing in Part XXIII, including a statement of the purposes and principles for sentencing, neither the Offence Act, RSBC 1996, c 338, nor the Act set out what constitutes the sentencing purposes and principles for offences committed contrary to it. Instead, s. 107 of the Act (s. 14 in the current version of the Act) sets out the public welfare purposes of the Act:

[109]   Rick Libman, on page 3 in his dissertation titled Regulatory Offences And Principles Of Sentencing: Is The "Patchwork Quilt" In Need Of Reshaping And Reform? (Doctoral Dissertation, Faculty of Graduate Studies at York University, May 2011), succinctly summed up the problem:

[110]   What we are left with, then, is reviewing appellant sentencing cases and previous decisions of this and other Provincial Courts in an attempt to ascertain the purposes and principles for sentencing in the public welfare offence framework.

[111]   To assist the Court in the present case, the BC Prosecution Service has provided the Court with several case authorities, which I have reviewed:

[112]   Mr. Blackburn has relied upon the Act and the Offence Act.

[113]   Section 217 of the Act sets out the available sentencing options for a defendant convicted of offences contrary to the Act or the OHS Regulation. The available sentence for an offender on a first conviction is a maximum fine of $738,000, six months in jail, or both. Section 220 of the Act requires that all fine payments be transferred for deposit to the accident fund.

[114]   When imposing a fine, s. 88 of the Offence Act requires the sentencing judge to consider the means and ability of the defendant to pay. Where the justice concludes the defendant is unable to pay the fine that the Court would otherwise impose, the sentencing judge may use their discretion and impose a lesser penalty.

[115]   Section 219 of the Act permits a justice to also impose additional conditions, akin to probation, for a period of up to 3 years. According to s. 89 of the Offence Act, a probation order for up to two years is also an available sentencing option.

[116]   Unlike criminal offences, existing case law teaches that sentencing in public welfare cases addresses harm in consideration of or in preparation for the future. No sentence imposed, financial or otherwise, can restore the tragic loss arising from the violation and is not intended to do so. What can be achieved and should be achieved by any sentence imposed is the deterrence of potential future offenders. Sentences should demonstrate to others that failing to comply with legislative provisions to protect worker safety will result in severe consequences.

[117]   The predominant sentencing principle in cases involving public welfare offences is general deterrence, as succinctly stated by Judge Lamoureux in paragraph 10 in Fiesta Party Rentals:

[118]   In emphasizing the point, Justice Paciocco confirmed in the last sentence of paragraph 78 in New Mex Canada Inc.:

[119]   In tragic cases such as Connor's, employers, supervisors, and society cannot view the death of an employee as an acceptable cost of doing business. The safety of employees, not profits, must always be the overriding concern for everyone, including employers and supervisors.

[120]   Safety should never be left to the discretion of an employee. It is the responsibility of the employer and supervisors to know the safety legislation and rules relevant to their industry. They must ensure that their workers are trained to do their job safely. Furthermore, the size of a business or the nature of the industry engaged in does not excuse the employer or supervisors' lack of knowledge or understanding of their obligations under the relevant legislation. I concur with the remarks in paragraphs 24 and 25 in Clearwater Electric Ltd.:

[121]   In the present case, Mr. Blackburn, as supervisor, 678531 BC Ltd., as owner and employer, and Mr. Steinmann, as the employer, failed to take steps to educate or properly train themselves or their employees concerning the relevant legislation and the SCUBA practises required for a safe workplace. There was no education, no training, and no attention to safety in the workplace as a priority. It was a disaster waiting to happen and Connor paid the ultimate price for their failures.

[122]   In public welfare offences, there is a shift in emphasis from punishing acts involving moral fault to protecting public and societal interests. The focus in these cases is on preventing future harm by enforcing a minimum standard of conduct. The aim of any prosecution for these offences is forward-looking. It is to induce compliance with rules to benefit society as a whole.

[123]   Moral blameworthiness in criminal offences tends to be greater than in regulatory offences. While of limited application, an assessment of an offender's moral blameworthiness in committing a public welfare offence nonetheless remains relevant and is implicit in applying the principle of proportionality. This distinction is appropriately reflected in the sentence imposed.

[124]   In considering the overall relevance of moral blameworthiness in regulatory sentencing, New Mex Canada Inc. clarified:

[125]   Supervisors in the red sea urchin harvesting fishery must understand that they, independent of any obligation imposed on their employer, must be aware of their obligations under the Act to ensure the health and safety of all workers under their direct supervision and to be knowledgeable about the worker safety legislation and regulations applicable to the work being supervised. Why? Because supervisors play an essential role in ensuring the safety of employees who work directly under them. This case demonstrates that ignorance of these responsibilities can have dire consequences.

[126]   Considering the factual findings I have made in the present case, Mr. Blackburn's moral blameworthiness is on the higher end of the spectrum. He voluntarily took employment in an industry he knew nothing about and was not qualified to work in. Once in the industry, he did not take steps to educate or properly train himself or the employees he supervised. He did not read or consider the relevant legislation. He knew nothing of the SCUBA practises required for a safe workplace. Profit was the primary goal of his work in the red sea urchin fishery.

[127]   The only reason Mr. Blackburn’s moral blameworthiness is not at the top of the spectrum are:

[128]   I accept that Mr. Blackburn has taken responsibility for his role in Connor’s death and is remorseful. When given his opportunity to address the Court, he stated:

[129]   Through his apology to the Brown family and from the information gleaned by the Court through the Pre-Sentence Report, his words to the Court, and counsels’ submissions, it is clear this tragic event has profoundly impacted Mr. Blackburn. I accept what the prosecutor and defence counsel have urged upon me: specific deterrence has been achieved in this case. 

[130]   Judge Steinberg’s writings in Scott Steel Ltd. and Scott mirror my opinion:

[131]   Financial penalties have become recognized by the Courts as the primary means of achieving the goal of general deterrence in public welfare cases. Jail terms of up to six months duration, while an available option under the Act, are apparently reserved for only a select few cases, none of which counsel provided to the Court.

[132]   During submissions, I interrupted the prosecutor to inquire why the BC Prosecution Service was not seeking a jail term for Mr. Blackburn. I expressed words to the effect of:

[133]   In response to my long-winded inquiry, the prosecutor replied:

[134]   Tom Rees, a Manitoba lawyer, makes an interesting point in his article General Deterrence and Denunciation – More Jail on Faith, Tom Rees – Legal News, May 3, 2022, https://www.tomrees.ca/general-deterrence-and-denunciation-more-jail-on-faith/, where he observes:

[135]   Accepting, as I must, the appellant authorities that for over 50 years have taught in the non-restorative justice context that a fine for most public welfare offences will act as general deterrence, the question then shifts to what amount of a fine? In Cotton Felts Ltd., starting in paragraph 22, Justice Blair provided the following guidance:

[136]   Judge Ball, as he then was, beginning with the second sentence in paragraph 62 of A-1 Mushroom et al., provided the following guidance in a case involving safety breaches of the Act and the OHS Regulation:

[137]   Once the court accepts that a fine is an appropriate penalty, the sentencing judge must consider the defendant’s ability to pay. All the same, the case law emphasizes that the offender's ability to pay cannot reduce what is otherwise an appropriate sentence, as explained in Fiesta Party Rentals:

[138]   Like most cases before the Court, aggravating factors need to be considered to determine a fit sentence. I find the following aggravating factors to have been proven:

[139]   The mitigating factors in the present case include the following:

[140]   As I stated to counsel during argument, I strongly believe in restorative justice. Restorative justice processes take various forms. In sentencing, restorative justice is often understood as a non-adversarial and non-retributive approach to justice that focuses on addressing the harm caused by offences while holding the offender responsible for their actions. In theory, restorative justice provides an opportunity for the parties directly affected by the offences - victims, offenders and communities - to identify and address their needs in the aftermath of an offence.

[141]   In the regulatory context, restorative justice seems contrary to the stated goal of general deterrence. Nonetheless, I believe there is a place for restorative justice in the regulatory context, including public welfare offences, based on the understanding that public welfare offences violate people, relationships and societal expectations. The principles of restorative justice are based on respect, compassion and inclusivity. Restorative justice encourages meaningful engagement and accountability and provides an opportunity for healing, reparation and reintegration. Concerning offences contrary to the Act and Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation, I believe that restorative justice means ensuring that the offender's sentencing reflects an understanding of the specific industry and addressing local issues by engaging with the local community. Restorative justice can also allow for general deterrence.

[142]   The Offence Act remains, in many respects, an archaic piece of legislation. It needs to be reformed and brought into the 21st Century. Specifically, the Offence Act is silent on the availability and use of Conditional Sentence Orders, an excellent tool for judges and offenders in the restorative justice context. Although there was hope among many in the legal world that Conditional Sentence Orders would become a helpful tool in the provincial regulatory offences sentencing toolbox, Justice Gill, in R. v. Corbett, 2005 BCSC 1437, ruled that Courts cannot impose a Conditional Sentence Order under the Offence Act. In other words, until the Legislative Assembly of British Columbia decides to update the Offence Act to allow for Conditional Sentence Orders, they remain unavailable to offenders such as Mr. Blackburn.

[143]   For purposes of Mr. Blackburn's sentencing, I have kept in mind and applied, albeit in a modified form, the principles of restorative justice in rendering my judgment. Specifically, within the statutory framework I have to sentence, I have, as best I can, addressed the harm caused by Mr. Blackburn's offences, which is the worst imaginable – Connor lost his life – and I am holding Mr. Blackburn responsible for his actions and inactions. I have also considered and built a sentence that addresses general deterrence.

[144]   While Connor lost his life, his family, girlfriend, friends and the community he left behind are still struggling to make sense of his tragic and unnecessary death. They, like many others, believed that British Columbia would have laws in place to prevent workplace deaths and injuries in the red sea urchin harvesting fishery and that someone or some entity would enforce the laws. Based on the evidence heard during Mr. Blackburn’s sentencing, it appears that the Act and Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation are out-of-date and insufficient to protect workers in the red sea urchin harvesting fishery. That said, this is a sentencing, not a coroner’s inquest.

[145]   Because of Connor’s death and the circumstances in which it occurred, the sentence requires a message be sent not only to Mr. Blackburn, but the employers and supervisors of other red sea urchin harvesting workers, as well as other businesses that utilize SCUBA in British Columbia. Modifying the teachings expressed in Clearwater Electric Ltd., my ruling cannot permit the death of Connor to become a mere footnote in the narrative, which will one day describe the somewhat unsteady march toward achieving a safer workplace for all British Columbian workers using SCUBA as part of their employment.

[146]   Section 88(1) of the Offence Act makes it clear that when determining the appropriate fine amounts to be handed out in the present case, I cannot blindly pick dollar figures out of the air. I must consider Mr. Blackburn's ability to pay the fines:

[147]   Defence counsel providing the Court with an understanding of Mr. Blackburn's current financial position has assisted the Court in crafting fines that will act as specific deterrence for Mr. Blackburn and general deterrence for others, including employers and supervisors, that require workers to use SCUBA. As stated above, the combination of the fines I am imposing plus the entire experience will serve as a specific deterrence to Mr. Blackburn. I have confidence that the penalties I am imposing will meet the goal of general deterrence and encourage compliance by others with the Act and Part 24 — Diving, Fishing and Other Marine Operations of the OHS Regulation.

[148]   I am mindful that $25,000 in fines for a person who makes $288,500 a year in income is not the same as $25,000 in fines for a person earning British Columbia's minimum wage of $15.65 per hour, never mind a person such as Mr. Blackburn, who is currently living off of a $339 a month Canada Pension Plan retirement pension and who has little, if any, assets or prospects for employment in the future.

[149]   Most reported sentencing cases tell readers what the dollar amounts of fines imposed are but do not express the fine amounts as a percentage of annual income or the offender's net worth.

[150]   In my view, the better way of determining financial penalties is to express the dollar amounts as a percentage of annual income and, in the best-case scenario, also as a percentage of the offender's net worth. In doing so, real meaning is given to the dollar amounts imposed as fines. Fines then have the same impact on all offenders, regardless of income or net worth. It also puts teeth into general deterrence, as others can know that fines imposed represent a percentage of income and assets, as opposed to just a randomly selected number.

[151]   While I appreciate that it is improbable that mandatory filing of financial information by defendants in a regulatory or criminal case will ever occur – unlike what happens in family law cases where parties file a Financial Statement so that the judge or adjudicator has a holistic view of the finances available – until defendants start to provide realistic and fulsome financial information to the Courts for use at sentencing, the ability of the Court to assess and determine the impact of a fine will be limited.

[152]   During a pre-sentencing Application For An Order compelling the defendant to provide financial documents to the prosecution to assist in determining an appropriate sentencing position, the Court in Ontario (Electrical Safety Authority) v. Broomfield, 2019 ONCJ 454, reviewed forty cases, some of which have were referenced by the prosecutor in the present case. The Court summed up the predicament as follows:

[153]   The 95-page analysis performed by the Court in Broomfield confirms the difficulties with the present state of the law. While the Court found that there was an ability under s. 57(3) of the Ontario Provincial Offences Act to issue an order compelling a defendant to disclose and produce his personal and business financial documents to the prosecution for sentencing purposes, the Court ultimately dismissed the Application For An Order.

[154]   There is no evidence or argument by the prosecutor that Mr. Blackburn is misleading the Court or otherwise being untruthful when he submits that he is currently living off of his $339 Canada Pension Plan retirement pension, is approximately $100,000 in debt, with no tangible assets other than his dilapidated non-sea worthy boat, and minimal job prospects for the future. Given what defence counsel submitted on behalf of Mr. Blackburn and his current financial situation, I am not satisfied that he can pay the $25,000 fine requested by the BC Prosecution Service anytime soon.

[155]   The prosecutor Ms. Magnin submits that rather than reduce the fine, the Court should give Mr. Blackburn an extended period to pay:

[156]   I accept that numerous authorities at the Provincial Court level and in the appellate courts support the BC Prosecution Service position. For instance, in the latter half of paragraph 13 in R. v. Schafhauser, 2017 BCSC 2287, Justice Punnett summed the principle in the regulatory context as follows:

[157]   Mr. Blackburn’s current income is $4,068 per annum. $4,068 is 16.272 percent of $25,000. So, in reality, the BC Prosecution Service is seeking a financial penalty representing over six years of income for Mr. Blackburn. Even if, on his meagre income, he could put away ten percent each month for payment towards the $25,000 fine, Mr. Blackburn would take over 61 years to pay it. And my calculation does not include the mandatory victim surcharge levy, which is an additional $3,750 of monies Mr. Blackburn does not have.

[158]   Looking at it another way, for a person who makes $288,500 a year in income, a $25,000 fine represents 8.665 percent of annual income or just under one month’s income. Assuming, as we did for Mr. Blackburn, that the $288,500 income earner could put away ten percent each month for payment towards the $25,000 fine, it would take under a month to pay it off. Furthermore, extrapolating forward, an equivalent fine for a person earning $288,500 a year is $1,772,984.27.

[159]   For a person who makes British Columbia’s minimum wage and works a 37.5-hour work week for a yearly income of $30,517.50, a $25,000 fine represents 81.92 percent of annual income. Assuming, as we did for Mr. Blackburn, that the minimum wage worker could put away ten percent each month for payment towards the $25,000 fine, it would take just over eight years to pay it off. Extrapolating forward, an equivalent fine for a person earning British Columbia’s minimum wage is $187,546.09.

[160]   How, one asks, can a fine be fair or act as general deterrence for others without considering the income and circumstances of the person being penalized? The impact of a $25,000 fine on a person in Mr. Blackburn’s current situation is different than the impact of a $25,000 fine on a person making British Columbia’s minimum wage, never mind a person making $288,500 a year or a corporation with assets and significant annual revenue. By viewing the fine as a percentage of income and net worth, true parity in sentencing can be achieved, and tangible meaning can be given to general deterrence.

[161]   Although stated in the context of criminal law and imprisonment, Chief Justice Lamer’s commentary in R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, is a helpful reminder in considering options for extending the time to pay for any fines the Court imposes on a defendant who is at or approaching their senior years:

[162]   Recently, in R. v. Breitkeutz, 2022 ABQB 559, Justice Feasby also had to consider the impact of an offender’s advanced years and the sentence to be imposed. He concluded:

[163]   I have taken the opportunity to also look at Statistics Canada’s December 17, 2015, Life expectancy at various ages, by population group and sex, Canada (https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1310013401), the latest available statistical analysis provided by Statistics Canada. It states that at 60 years of age, the average Canadian male has a life expectancy of another 20.5 years. As Mr. Blackburn was born in July of 1961, his approximate statistical life expectancy, without accounting for his specific ongoing medical issues, is another 19 years.

[164]   Following the case authorities provided to the Court, I have determined a unique sentence for Mr. Blackburn that addresses all the purposes and principles of sentencing required in cases of public welfare offences. In doing so, I have considered the submissions of the prosecutor and defence counsel at great length. I have also considered Mr. Blackburn’s age, life expectancy, employment prospects and the reality that a Conditional Sentence Order, which would have been a worthwhile sentencing option in the present case, is not available.

[165]   Mr. Blackburn’s sentence will include a fine equivalent to 6.145 times his annual income, which should act as a significant deterrence to others. His sentence will also include a significant number of community work service hours, so that he can give something back to his community.

[166]   Concerning count 2, there will be a fine of $12,500, the mandatory victim surcharge levy, and two years of probation. I will come to the terms of the probation shortly. The time to pay the fine will be July 31, 2042; however, Mr. Blackburn shall be required to make a minimum payment of at least $203.40 each year. The time to pay the victim surcharge levy in full will be December 31, 2030.

[167]   Concerning count 5, there will be a fine of $12,500, the mandatory victim surcharge levy, and two years of probation (concurrent with the probation on count 2). I will come to the terms of the probation shortly. The time to pay the fine will be July 31, 2042; however, Mr. Blackburn shall be required to make a minimum payment of at least $203.40 each year. The time to pay the victim surcharge levy in full will be December 31, 2030.

[168]   You must comply with the probation order for a term of 24 months. The conditions are:

[169]   All of which is ordered this 21^st day of February 2023.