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R v French, 2019 ABPC 149 (CanLII)

Date:
2019-06-24
File number:
161006820P1
Citation:
R v French, 2019 ABPC 149 (CanLII), <https://canlii.ca/t/j15qx>, retrieved on 2024-03-28

In the Provincial Court of Alberta

 

Citation: R v French, 2019 ABPC 149

Date: 20190624

Docket: 161006820P1

Registry: Lethbridge

 

 

Between:

 

Her Majesty the Queen

 

 

- and -

 

 

David Alan French

 

 

 

- and -

 

 

Brooks Motocross Club

 

 

 


 

Judgment of the Honourable Judge J.N. LeGrandeur

As to Sentencing

 

Nature of the Proceedings

[1]               Both Defendants, David Alan French and Brooks Motocross Club (“BMC”), were convicted of  having contravened s35(1) of the Fisheries Act, RSC, 1985, c F-14 and s32(1) of the Species At Risk Act, SC 2002, c 29 as amended (SARA), on the 30th day of August, 2014.

[2]               BMC was convicted with respect to the Fisheries Act offence essentially as a principal offender and David Alan French was convicted as a corporate officer of BMC pursuant to s78.2 of that Act as having participated in the commission of the offence for which BMC was found guilty. 

[3]               BMC was convicted with respect to the SARA offence essentially as a principal offender and David Alan French was convicted pursuant to s98 of the said Act as a corporate officer who acquiesced or participated in the commission of the offence by the BMC.

Circumstances of the Offence

[4]               The circumstances surrounding the offence and the role played by the respective Defendants in those offences are set out in detail in the Court judgment issued April 12th, 2018 and reported as R v French, 2018 ABPC 296.  By way of short overview of circumstances the corporate Defendant organized and ran a motocross race in the Racehorse Creek area of the Crowsnest Pass in the Province of Alberta, on the date of August 30th, 2014.  The motocross racers participating in that undertaking crossed on their motorcycles the streams of Racehorse Creek and North and South Racehorse Creek at a number of locations thereby causing the death of fish in those locations as described in the provisions of the Fisheries Act and more specifically the death, harm, harassment of West Slope Cutthroat Trout, a threatened species.

[5]               David Alan French was an officer of the Defendant corporation and participated in the advancement of the race through his efforts of obtaining the necessary insurance for the undertaking, attending the race to be of assistance and setting up the course, purportedly being in charge of bridging for the race and his giving of instructions to participants with respect to the race and coordinating the race start for the various categories of racers.  He was not the operating mind of the BMC with respect to the race but he clearly acquiesced or participated in the commission of the offence by the BMC as so found by the Court.

[6]               The Fisheries Act offence and the SARA offence arise from the same action.  The crossing of the subject waterways by the motocross racers during the course of the race was the single continuing action that led to the consequential harm to fish which led to the subject offences.

[7]               Neither Defendant actually committed the physical act that resulted in death, harm or harassment of the subject fish as contemplated by the charging section of the respective legislation.

[8]               With respect to the s35(1) Fisheries Act offence the Court concluded that year to young fish were killed by the race activities, that is, stream crossings by the racers at the crossings described in the judgment.  The Court could not conclude that fish in the sense of eggs were crushed or injured or killed as a result of the race activities.  The Court’s conclusion as to death of year to young fish as contemplated by s35(1) of the Fisheries Act was based upon circumstantial and expert evidence.  There was never presented to the Court any physical evidence of actual death.

[9]               With respect to the s32(1) SARA offence, the Court was also satisfied that such West Slope Cutthroat Trout were killed as a result of the same activity although again, that determination was based upon circumstantial and expert evidence without any actual physical evidence of death of the threatened species.

Circumstances of the Offenders

[10]           BMC is a not for profit society incorporated in 2008.  At the time of sentencing submissions it had 165 members, 65 of whom were under the age of 16 years.  The Club is run primarily by volunteers contributing hundreds of hours of time throughout the year.  It offers instruction in the sport of motocross and all the things that would be related thereto including safe operation of motorcycles through clinics for individuals starting as young as six years of age.  BMC, is, I think it is fair to say, often a family participatory club with father and/or mother and sons and daughters all participating in one way or another in the motocross activities.  It offers a activity for both youth and adults and thereby enhances the community as a whole.

[11]           Counsel advises that its annual resources are approximately $80,000.00; $72,000.00 of which is applied to track maintenance, insurance, rent and other costs.  The remainder is retained as a float against cost overruns in successive years.  The Club has never been convicted of any other form of offence regulatory or otherwise.  The Court was not advised if any part of the $80,000.00 was made up of membership fees.

[12]           David Alan French has for many years been involved with BMC as a member of the executive board of the Club and at the time of this incident was the Vice-President of BMC.  He was involved for a number of years prior to 2014 in the running of the Club and in the organization and running of the subject race in the Racehorse Creek area.  He, like the Club, sought no financial benefit nor derived any financial benefit from the race that is the subject of these proceedings or any other activity of the Club.  He has no previous criminal record and is certainly an individual of good character in his community. 

Crown Position on Sentence

[13]           With respect to the corporate offender the Crown seeks a fine of $35,000.00 with respect to each offence.  It is the Crown’s view that each offence on its own in the circumstances would attract a fine of $60,000.00 to $70,000.00 under either piece of legislation however given the fact that these offences arise from one transaction that did not discriminate between the fish species involved that a global penalty for both offences should be around the $70,000.00 figure.

[14]           The s35 Fisheries Act offence has a minimum penalty for a small revenue corporation of $25,000.00.  A small revenue corporation is one whose gross revenues for the 12 months immediately preceding the incident in question were less than $5 million.  BMC appears to have a revenue of less than 1/50 of that maximum. 

[15]           The s32(1) SARA offence carries no minimum with a maximum of $50,000.00 for a non profit corporation.  A non profit corporation is a corporation wherein no part of the income of which is payable to or available for the personal benefit of any proprietor, member or shareholder of the corporation.  BMC is such a non profit corporate society. 

[16]           It is notable that these two pieces of Federal legislation apply different principles to the determination of the Defendant’s status which in turn potentially affects their penal liability.  Although the Crown asserts that the SARA offence may indeed be the more serious given the threatened nature of the species addressed therein, the SARA offence has no minimum fine and a considerable lower maximum than is the case with respect to the Fisheries Act offence.

[17]           It would seem that a non profit corporation under SARA is seen as more analogous to an individual than a small revenue producing corporation under the Fisheries ActThe potential penal liability as between an individual and such corporation under the Fisheries Act is substantially different.

[18]           In SARA the non profit corporation and the individual accused are treated the same although the individual could be liable on conviction for imprisonment as well as a fine.

[19]           Under the Fisheries Act the individual would not be liable to imprisonment for a first offence even though there is a minimum fine. 

[20]           The Crown asserts that this is not a case where due diligence was a near miss.  Rather, it is one where culpability of the corporation should be measured considering the following factors:

-         that the corporation had knowledge of the need to avoid stream crossings as part of the race given the fish population and also had knowledge of the West Slope Cutthroat Trout as a threatened species.

-         that simple and inexpensive steps, establishing temporary bridging at stream crossings, would have mitigated any harm to the fish.

-         the dangers to the fish species in the stream would have been known given the corporate knowledge from previous years and interaction with Federal Fisheries and Alberta Wildlife representatives.

-         harm to the fish was not minimal.

[21]           The Crown asserts these factors call for a fine above the minimum floor set by Parliament under the Fisheries Act and a comparable fine under SARA given the same factors.  The Crown asserts that specific and general deterrence are primary sentencing factors in this case.  The motocross and off-road vehicle community and indeed the public at large must be deterred by the penalty imposed.  It must be significant enough to deter similar conduct by all in the future. 

[22]           With respect to David Alan French the Crown asserts that a fine of $20,000.00 is fitting under the Fisheries Act given his involvement in the race and his role in helping set up for the race and his status in the corporation.  The minimum fine under the Fisheries Act would be $5,000.00 with a maximum of $300,000.00.

[23]           The Crown asserts the fact that Mr. French knew from previous experience and advice given from government officials that crossing streams could lead to harm to fish and that he was aware of the presence of the West Slope Cutthroat Trout in some of the subject streams increases his culpability and justifies a fine above the minimum under the Fisheries Act and a comparable fine under SARA of $20,000.00.

[24]           Again, the Crown is asserting that globally $40,000.00 is an appropriate disposition for either offence on its own but given the fact that it is only one transaction it is appropriate to deal with it by imposition of $20,000.00 on each offence.

[25]           Again, the Crown notes that deterrence is a primary factor so as to advise the public and those holding positions in corporations, that officers, directors, agents or mandatories who participate in an offence committed under SARA and the Fisheries Act are not insulated from liability.  The imposition of a penalty on such individuals is directed at making such participants personally liable and thereby more likely in their corporate capacity for them to demand regulatory compliance by the corporations they are involved in. 

Defendant’s Position on Sentence

Brooks Motocross Club

[26]           Defence counsel asserts that the fine with respect to the Fisheries Act offence should be near to, if not at, the $25,000.00 floor fixed by the legislation.  Counsel submits that the Court must consider that this is a small revenue corporation and its profits as opposed to its revenues is likely to be less than $10,000.00.  Its activities are not designed to produce revenue; it is entirely run by volunteers and well over one third of its members are under 16 years of age.  This is not a corporation with assets or a revenue stream; it is not an undertaking designed to make money but to offer recreational activities to young and old centered around the sport of motocross.  Any fine, counsel says, that is greater than the minimum cannot be justified on the basis of the revenue of the society.  Its nature speaks to a fine being the minimum under the Fisheries Act.  A fine even only marginally more than the minimum could very well be crushing to the operation of this volunteer organization. 

[27]           Counsel also asserts that although the corporation must be seen as having had notice of the need to address stream crossing during the race given previous advice to Mr. French in 2013, failure to respond to that notice was not intended or reckless but only negligent on the part of the corporation in the circumstances.

[28]           Counsel also asserts that this transaction was of limited duration and although it is acknowledged that death to fish occurred, there is no evidence before the Court despite the significant period of time between the offence and the trial that would demonstrate that this undertaking had any long term consequence with respect to the fish stock of either Bull Trout or West Slope Cutthroat Trout.  That fact and the inability to actually determine how many young fish were killed or harmed, although not mitigating nonetheless factor towards a fine at or near the minimum floor established by the legislation. 

[29]           With respect to the SARA offence, counsel submits given the same considerations that a fine of $35,000.00 which would be 70 percent of the maximum fine is excessive in the circumstances.  Given the fact that it is the one transaction that led to two offences and the principle of totality counsel assert leads to a fine in the lower end of the range, $5,000.00 with the global fine total then being $30,000.00 which would be more proportional to the circumstances of the offence and the circumstances of the offender in the context of this case but nonetheless adequate deterrence and denunciation for the offence.

David Alan French

[30]           Counsel for Mr. French points out that Mr. French is a 58 year old individual of previous good character who is an active volunteer in the community, volunteering on a number of organizations including of course the BMC. 

[31]           Counsel notes that the actual impact of the traversing of the streams in the sense of the number of fish killed or harmed is unknown and there is no direct evidence or expert opinion that illustrates or opines as to the impact on the fish species of the regulatory breaches.  Counsel also notes that Mr. French did not participate in the race with the intention of causing harm or death to any fish.  Counsel also points out that Mr. French’s culpability is as an officer of the corporation participating in the offence committed by the corporation; he was not the organizer or directing mind of the undertaking by the corporation but only participated as a director in helping to run the undertaking.  Those factors all speak to the lower end of the fine spectrums for the offences before the Court and counsel asserts that the fines for Mr. French should cumulatively total between $10,000.00 and $20,000.00.

Sentencing Analysis

[32]           The purposes of SARA are:

1.      To prevent wildlife species from being extirpated or becoming extinct;

2.      To provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activities; and

3.      To manage species of special concern to prevent them from being endangered or threatened.

[33]           SARA recognizes “Canada’s natural heritage as an integral part of our national identity and history”; and the wildlife thereof in all forms as having value in and of itself and which is valued by Canadians for esthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons; and that providing legal protection for  will compliment existing legislation.  All Canadians have a role to play in the conservation of wildlife in this country including the protection of wildlife species from becoming extinct; (see:  preamble to SARA).

[34]           Although the Fisheries Act does not specify its purposes within the legislation is directed at the protection of a significant part of our natural heritage for the same reasons that are expressed with respect to SARA

[35]           The Fisheries Act and SARA are directed at among other things, the protection of wildlife to which the legislation applies; fish generally and specifically the West Slope Cutthroat Trout.

[36]           The offences being considered before this Court are “public welfare offences”, they are offences created by statute established for the regulation of individual activities in the general welfare of the public.  The offences before the Court are concerned with the protection of societal interests, not punishment of an individual’s moral faults.

[37]           In R v Wholesale Travel Group Inc, 1991 CanLII 39 (SCC), [1991] 3 SCR 154 at 238, Cory J describes regulatory legislation as follows:

Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interest.  While criminal offences are usually designed to condemn and punish past, inherently wrong conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

[38]           In the decision R v Payne, [2011] NJ No 155 (PC), Judge Gorman in addressing sentencing under the Fisheries Act stated at para 24 of his decision;

24        The predominant purpose of sentencing pursuant to the Fisheries Act involves protection and preservation of the species to which the legislation applies.  Thus, the sentencing principle of general deterrence prevails ..., the “regulations are designed to protect and preserve a valuable resource and any contravention of them must be taken seriously.  Deterrence must be a primary consideration, both specifically of the accused and generally, of other members of the public who are inclined to act in the same manner.  Penalties must be imposed to reflect the seriousness of the offences and to achieve the deterrence that is requisite.  Ultimately, any penalty must be such as to communicate to the accused that there is a high risk associated with their illegal activities, both for the resource they are affecting and to themselves for their conduct.”

[39]           In R v Oldford, 2005, NLTD 38, the Court noted that in imposing sentence pursuant to the Fisheries Act the sentencing principles of proportionality and totality must be applied (at paras 32-33):

The Fisheries Act and regulations create quasi-criminal offences but appropriate allowances must be made for the distinctive public interests that are protected by the legislation.  Nevertheless, courts must be cognizant that the principles of sentencing do apply and must strive to achieve the balance and synergy of a fit sentence.  This calls for considering proportionality, weighing the mitigating and aggravating factors and taking special circumstance of the offender into account.

[40]           Although Judge Gorman was dealing with different offences under the Fisheries Act his approach I believe is appropriate when considering all offences under the Fisheries Act and is equally applicable to the approach to be applied in sentencing for offences under SARA.

[41]           The Alberta Court of Appeal in the case R v Terroco Industries Ltd, 2005 ABCA 141 (Terroco)sets out a number of factors that should be considered in regulatory offence sentencing.  The Terroco case was an environmental protection case as opposed to a wildlife case but the sentencing factors referenced in the case speak to public welfare offences generally and are not restricted to environmental protection offences.  Accordingly, the case offers guidelines for sentencing purposes with respect to the public welfare offences before this Court.  Sentencing considerations referenced therein that may be applicable in this case are as follows:

-         failure to take simple and inexpensive steps to avoid the unwanted consequences prior to the act is an aggravating factor.  (Para 36)

-         was this offence a near-miss in terms of due diligence or did it demonstrate carelessness at a  higher level such as exhibiting wilful blindness, recklessness or intent? (Paras 36-37)

-         is there any prior record of  regulatory offences? (Para 38)

-         is post-offence conduct evidence of remorse in the circumstances of the case before the court? (Para 41)

-         was actual harm established? (Para 45)

-         absence of harm is a neutral factor only. (Para 47)

-         is specific and general deterrence a key component of sentencing for the offences before the court? (Para 53)

-         is the offender a small corporation of limited means?

-         the starting point for sentencing a corporate offender must be such that the fine imposed appears more than the licensing fee for illegal activity, the penalty must be more than a slap on the wrist but less than a fatal blow (Para 60)

-         the penalty imposed should have a deterrent effect on others.

-         did the offender persist after being warned?

[42]           The extent to which any of these factors play a role in forming the sentencing decision in any case is of course dependent upon the circumstances of the case and the individual before the court.  Ultimately the sentence must fit the offence and the offender recognizing the nature of the offence in the context in which it occurred and the actions of the offender.

[43]           As noted aforesaid both offenders have been found guilty of offences arising from the same transaction that is, the undertaking of the motocross race under the auspices and control of BMC and the participation of David Alan French, an officer of the corporation in the carrying out of that undertaking.

[44]           In most, although not all situations where two offences arise from one transaction, a concurrent sentence is called for.  Fines cannot be concurrent so the matter must be approached in the same manner as one would approach consecutive sentences; that is, the court must impose a fine with respect to each offence mindful that the total amount of the fines ordered not exceed what is appropriate (R v Ward, 1980 CanLII 2882 (ON CA), [1980] OJ No 1439 at para 9(CA)). 

[45]           A sentence for each offence on its own must be formulated and then the court must take a “last look” to ensure that the cumulative fines do not exceed the overall culpability of the offender.  A cumulative sentence may offend the totality principle if its effect is a “crushing sentence”, one not in keeping with the offender’s  record or propensities (R v Wozny 2010 MBCA 115 at paras 59-60 (Wozny)).  I believe a sentence that could be fatal to the operation of a non-profit organization could be seen as a crushing sentence as well. 

[46]           Section 40 of the Fisheries Act calls for a sentence for an individual, for commission of an offence on summary conviction contrary to s35(1) of the Act of a fine not lower than $5,000.00 and not more than $300,000.00; for a small revenue corporation a fine of not less than $25,000.00 and not more than $2 million.  A corporation other than a small revenue corporation would be liable for a fine in a first offence of not less than $100,000.00 and not more than $4 million. 

[47]           Clearly these penalty sections give consideration to the financial significance of the corporation as a factor in sentencing.  A corporations size and the impact of the fine imposed is one of the relevant factors in sentencing:  R v Fiesta Party Rentals (1984) Ltd, 2000 ABPC 28.

[48]           Under s97(1.1)(b) of SARA, a non-profit corporation, one where no part of the income is payable to or is otherwise available for the personal benefit of any proprietor, member or shareholder of the corporation, is liable on summary conviction for an offence under s32(1), to a fine of not more than $50,000.00.  Any person is liable for a fine of not more than $50,000.00 or imprisonment or both.  Unlike the Fisheries Act there is no minimum fine payable by either corporation or individual. 

[49]           Although the purposes of both Acts in part is essentially the same having regard to the protection of fish species, I conclude that given the minimums established by the Fisheries Act as well as the maximums, the gravity of the Fisheries Act offence appears to be greater than the offence under SARA.

Section 35(1) Fisheries Act

[50]           In determining a fit sentence the Court must consider the circumstances of each offender and each offence.  Where there is a minimum sentence which in effect establishes an inflationary floor the general principles of sentencing still apply (R v Morrisey, 2000 SCC 39 at para 75) in determining what, subject to this floor, an appropriate sentence is in the circumstances of the case.  The minimums will be applied in most instances to the so-called best offender and least serious expression of the offence but that is not necessarily the case.  The minimum could be applied in other circumstances as well; (see:  R v McNuff 2011 ONSC 4051 at para 25 and R v Colville, 2005 ABCA 319 at para 26).

[51]           With respect to BMC a fine of $25,000.00 is more than a slap on the wrist.  It would represent five years of annual payments of $5,000.00 out of minimal revenue funds that are likely important to the continuation of the non-profit society.

[52]           Given that the range of the fines available is in part dependent upon the financial status of the corporation and given where the revenue of BMC fits within the range caught by the section, which is at the very low end of that range; BMC would fit in the range of the minimum fine.

[53]           The fact that the harm could have been in all likelihood prevented by simple and inexpensive actions, that is the building of temporary bridges over the streams and the fact that the corporation at least through one of the officers, Mr. French, had the year previously received notice from Fisheries as to the issue of crossing streams with motorcycles or motorized vehicles during the race speaks to a raised level of culpability which calls for a fine greater than the minimum.

[54]           The Court has no evidence specifically before it as to whether BMC was aware of the concerns of Fisheries.  Certainly Mr. French was aware of them and how to remediate those concerns (bridges) but he was not the operating mind that was in charge of organizing and putting on the 2014 race although he did volunteer time and participated in the undertaking.  Was BMC actually aware of the concerns and obligations or only Mr. French?  Although the knowledge of French becomes the corporate knowledge of BMC that seems to me to be different than actual knowledge on the part of BMC. 

[55]           Mr. French had run this particular race for a number of years.  He was the source and conduit of information in that regard.  In 2014 he was not responsible for the race and based on his testimony, not active in the pre-planning thereof which was in the hands of a third party although he did participate as I have described aforesaid.

[56]           BMC was certainly negligent in not requiring that all the necessary steps be taken to comply with all regulatory matters that would be touched by the race; regardless of what Mr. French may or may not have advised them of over the course of the years that he directed the race.  I cannot conclude however that BMC as a corporation wantonly or purposely disregarded the notice from Fisheries given to Mr. French prior to and after the 2013 race.  BMC’s negligence was however more than a near miss with respect to due diligence as they essentially did nothing in that regard to assure regulatory compliance.

[57]           It would appear that BMC through someone related to the undertaking had knowledge that bridges were needed.  Mr. French advised in his testimony that he had been tasked with dealing with the bridges which given that he was not actually in charge of putting on the undertaking would suggest he was tasked by BMC with doing the same. 

[58]           BMC’s lack of diligence in that context was not making sure that what was to be done was in fact done.  I do not believe it can be said that BMC was patently disregarding the need for bridges, rather as noted aforesaid, it was negligent in not making sure this protective feature was in place.  That fact supports a fine higher than the minimum.

[59]           With respect to what harm was caused by this regulatory breach it is clear that fish were killed although it is impossible to know how many or the long term impact on the respective species in this region.  Not knowing that impact is neither aggravating nor mitigating in the sentencing calculus having regard to the nature of the charges.  In this type of a case absent direct and catastrophic evidence of immediate deaths it would be virtually impossible to determine consequential damage without undertaking scientific studies for the years following the incident.  Frankly that would be impractical and prohibitively expensive.  The point of the regulation is to prevent the occurrence or the potential for the occurrence in the first place so as to avoid having to conduct such a forensic analysis.

[60]           With respect to post-offence conduct by BMC the Court was advised that the Club is no longer conducting motocross races on public lands.  This certainly shows some recognition of the issue and the commitment to not have it happen again and offers some demonstration to other motocross clubs, racers and enthusiasts that there are other ways to enjoy the sport without coming into contact with public welfare regulations.  This has some mitigating value although certainly that result could have been achieved by exercising due diligence in the first place.

[61]           In summary, BMC failed to take simple and inexpensive steps  to avoid the illegal consequences demonstrated, that is erect temporary bridges; this was not a near miss in terms of due diligence in this case although as I have noted aforesaid it is something less than reckless; actual harm to fish in terms of death was established; they had some notice of Fisheries concerns which they were negligent in not assuring were addressed.  On the other hand, BMC is a corporate society with little  more revenue than is necessary to maintain their activities; it is a club run by volunteers, (R v K Peter Industries Northern Ltd, 2000 YTTC 49 at para 7); there is no previous record for the corporation with respect to regulatory breaches.  Therefore it is my conclusion that considering these factors and the principles of sentencing, the nature of the offence, the nature of the offender, that a fine of $30,000.00 with respect to the Fisheries Act offence would be a just sanction in the circumstances and adequately address denunciation and deterrence when considered in the context of this offender and this offence.

[62]           With respect to the SARA offence as noted aforesaid this offence is of less gravity than the Fisheries Act offence and arises from the same transaction, differentiated only by the fact that the fish species was a threatened species.  Looking at that charge on its own having regard to the same factors mentioned aforesaid and in considering the s102 sentencing factors  set out in the Fisheries Act which basically mirror the factors this Court has already considered aforesaid and having regard to the nature of the corporate defendant , I consider that a fine of $25,000.00 would be a just sanction for this offence and this offender in the circumstances.  This slight difference in fine recognizes that the offence under SARA is one of less gravity than the offence under the Fisheries Act and has no minimum.

Totality

[63]           As noted aforesaid given that we are dealing with fines, not imprisonment, the Court cannot make the fines concurrent despite the fact that both defences arise from the same one time transaction.  The Court must now look at the total fine of $55,000.00 with a “last look” to see if it meets with the principle of totality and the principles of proportionality and restraint so as to make sure the total does not exceed what would be just and appropriate in light of the culpability and circumstances of the offender and the fact that both offences arose from a single transaction.

[64]           If fines could be dealt with on a concurrent basis, it is likely that the larger of the two fines would have been adjusted upwards in an acknowledgment that two offences had been committed and so as to avoid the impression that the offender received a “free ride” with respect to the lesser of the two fines; (Wozny at paras 63 and 65).

[65]           With that in mind in conjunction with the totality principle, I conclude given all the circumstances that a total fine of $45,000.00 would be a just sanction for the offending corporation.  It is much more than a slap on the wrist in the context of this offender, but less than “crushing”;  and serves to deter both generally and specifically making it clear that even small corporations will pay a significant price relatively speaking for such regulatory breaches.

[66]           Accordingly, the fine for the SARA offence is adjusted to $15,000.00 with the resultant total being $45,000.00 in fines.

[67]           The corporate society will be subject to civil distress or such other remedies available to enforce the said fine in the event of default of payment by the corporation.

David Alan French

[68]           Mr. French is liable for the offence under the Fisheries Act on summary conviction to a minimum fine of $5,000.00 with a maximum of $300,000.00.  For the offence under SARA he is liable on summary conviction to a maximum fine of $50,000.00 with no minimum or to imprisonment or to both. 

[69]           I conclude that Mr. French’s moral culpability is high given his past involvements with Fisheries after the 2013 motocross race and the fact that he had notice of the concerns expressed by Fisheries about the race past and future.  He was, based on his evidence, in charge of bridges however did nothing to address those concerns.  He was at the very least reckless with respect to concerns advanced with respect to the welfare of the fish and the streams.  He, more than any other person involved, even though he was not the directing mind of the undertaking, could have made sure that the race did not contravene the regulatory regime relating to harm to fish in the streams crossed during the course of the race.  His knowledge of the concern of Fisheries, his lack of concern, the inexpensive nature of avoiding the consequences, that is death to fish in the stream, all call for a fine for the Fisheries Act offence higher than the minimum $5,000.00.

[70]           The provisions of s78.2 of the Fisheries Act and s98 of SARA which made certain individuals such as an officer of a corporation personally liable for the offence committed by the corporation, like other similar sections in other regulatory statutes is directed at achieving a greater assurance of compliance by the corporate body.  Placing the officer who fits into the statutory provision at risk of culpability and penalty, provides a constant reminder to those involved in an administrative capacity with corporations of the necessity of compliance and the consequences of failure to follow regulatory requirements and reminds the corporation and the officer about regulatory compliance because that corporate officer has a personal stake in that being achieved. 

[71]           Such secondary liability potential for the officer also serves to avoid the circumstance where an asset-less or poor corporation is held liable but given their circumstance, any consequence imposed is meaningless; (Alpha Manufacturing Inc v British Columbia, 2005 BCSC 773 at para 215; Ontario (Ministry of Natural Resources) v 819743 Ontario Inc, 2013 ONCJ 128 at para 63). 

[72]           Of course any fine imposed upon Mr. French in that context must comply as well with the principle of proportionality as a fine that fits the offender and the offence.  It must also in the circumstances address deterrence, specific and general as well as denunciation to some extent.

[73]           Given all the factors I mention aforesaid with respect to Mr. French’s culpability and role, as well as the fact that he is an individual of previous good character and that he was working the role of a volunteer, I conclude that a fine in the amount of $20,000.00 would be appropriate and proportionate for the Fisheries Act offence. 

[74]           With respect to the SARA offence, the same principles and factors apply as described aforesaid with respect to the Fisheries Act penalty.  However, recognizing that there is no minimum and the maximum is much less than for the corporate entity for the Fisheries Act offence and as noted aforesaid the gravity of this offence is less than the gravity of the Fisheries Act offence.  If the SARA offence were the only offence before the Court for Mr. French given all the circumstances noted I would conclude that a fine of $15,000.00 would be appropriate for such offence.  This amount reflects in part the fact that the penalty section in SARA as compared to the penalty section in the Fisheries Act has no minimum and a significantly lesser maximum on summary conviction.

Totality

[75]           Given that both offences arise from the same transaction I must consider whether the cumulative total ($35,000.00) is just, appropriate and proportionate.  In that context in my view a cumulative fine of $25,000.00 for Mr. French adequately addresses deterrence and denunciation and is proportionate to Mr. French’s culpability, that it was committed by him as a volunteer and having regard to his good character and that it arises from a single transaction which is also the subject of the Fisheries Act penalty previously imposed.

[76]           Accordingly to address the totality principle, I reduce the fine for the SARA offence from $15,000.00 to $5,000.00 thereby leaving a cumulative fine payable by Mr. French of $25,000.00.

Further Order

[77]           Pursuant to the provisions of s79.2(c) of the Fisheries Act and s105(d) of the Species At Risk Act, I direct:  Brooks Motocross Club and David Alan French shall jointly cause to be published in a motocross magazine circulated in the Province of Alberta or such other publication approved by the Court so as to advise the motocross community that Brooks Motocross Club was convicted pursuant to s35(1) of the Fisheries Act, RSC 1985, c F-14 and s32(1) of the Species At Risk  Act, SC 2002, c-29 for causing the death of fish including a threatened species of fish as a consequence of carrying on a motocross race wherein the motocross racers crossed through streams where such fish were located and that  Brooks Motocross Club was fined $30,000.00 and $15,000.00 for the respective offences and that an officer of the Brooks Motocross Club was convicted of the same offences as a party thereto for having participated in the carrying on of the race and fined personally $20,000.00 for the Fisheries Act offence and $5,000.00 for the Species At Risk Act offence.

[78]           The name of David Alan French need not be included in the publication, he may be referred to as an officer of the Brooks Motocross Club. 

[79]           The said notice shall be published within six months from this date unless notice of appeal of conviction or sentence is filed or the Court otherwise authorizes such variation.

[80]           The fine payable by David Alan French pursuant to the Fisheries Act shall be credited to the Environmental Damages Fund pursuant to s40(6) of the Fisheries Act

[81]           The fine payable by Brooks Motocross Club pursuant to the Fisheries Act shall be credited to the Environmental Damages Fund pursuant to s40(6) of the Fisheries Act.

[82]            $4,000.00 of the fine payable by David Alan French with respect to the offence under SARA ordered by this judgment will be paid to the Receiver General of Canada to be credited to the Environmental Damages Fund pursuant to s105(k) of SARA.

[83]           $10,000.00 of the fine payable by Brooks Motocross Club with respect to the offence under SARA ordered by this judgment will be paid to the Receiver General of Canada to be credited to the Environmental Damages Fund pursuant to s105(k) of SARA.

[84]           All monies payable to and received by the Environmental Damages Fund pursuant to this judgment will be directed towards projects benefitting fisheries in the Province of Alberta, with a preference for recovery activities that will benefit West Slope Cutthroat Trout.

[85]           Counsel for the Crown shall prepare the necessary Order or Orders reflecting the terms of this judgment and any variations agreed to on the record June 24th, 2019; which Orders shall be forwarded to counsel for the Defendants for approval and thereafter signed by myself or the Clerk of the Court and entered as part of the Court record.

 

 

Heard on the 9th - 13th days of April, 2018, 17th -18th  days of April, 2018,

17th day of December, 2018, and the 9th day of April, 2019

Dated at the City of Lethbridge, Alberta this 24th day of June, 2019.

 

 

 

 

 

 

 

 

J.N. LeGrandeur

A Judge of the Provincial Court of Alberta

 

 

 

Appearances:

 

Ms. Conly and Ms. Eacott

for the Crown

 

Mr. Guinan

for Mr. French

 

Mr. Koerselman

      for Brooks Motocross Club