CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SECTION 8 OF THE CHARTER AND FISHERIES ACT SEARCHES

In R. v Skye View Farms Ltd. et al., 2022 PECA 1, February 22, 2022, the accused were charged with the offence of having deposited or permitted the deposit of a deleterious substance in water frequented by fish, contrary to section 36(3) of the Fisheries Act, R.S.C 1985.  At the trial, the accused argued that evidence obtained as a result of a warrantless search of their property should be excluded because it was obtained in violation of section 8 of the Charter.

The circumstances which led to the charges and the section 8 Charter application were described in the following manner (at paragraphs 2 and 3):

There was a heavy rain in the Clyde River area July 24, 2016.  The next day Roseanne MacFarlane, a freshwater Biologist with the Province of Prince Edward Island, received a telephone call.  Dead fish had been found in the Clyde River near the Bannockburn Road.  

Over the course of that evening and the next day officers from the Federal Department of Fisheries and Provincial Environment surveyed the situation.  They walked portions of the river to locate dead fish.  Central to this case, they also entered the respondents’ potato fields on several occasions where they took foliage and water samples as well as photographs, measurements, and videos.  The respondents were subsequently charged that they did unlawfully deposit or permit the deposit of a deleterious substance, namely agricultural run-off containing pesticides, in water frequented by fish, to wit: the Clyde River, contrary to section 36(3) of the Fisheries Act, thereby committing an offence contrary to section 40(2) of the Fisheries Act, R.S.C. 1985, Cap. F-14. 

The section 8 Charter arguments concentrated on whether the fisheries officers were conducting a regulatory inspection pursuant to section 49 of the Fisheries Act or a criminal investigation, warranting the obtaining of a search warrant pursuant to section 49.1 of the Fisheries Act.

The trial judge concluded that a breach of section 8 of the Charter had occurred and excluded evidence obtained from the search of the accuseds’ potato fields, including samples of foliage, water samples, photographs, measurements and videos. As a result, the accused were acquitted.

The Crown’s appeal to the summary conviction appeal court was dismissed.  The Crown was granted leave to appeal to the Prince Edward Island Court of Appeal.  The primary issue was described as determining “[w]hat is the proper test to apply when an accused asserts a s.8 Charter infringement relating to a search conducted under the Fisheries Act, R.S.C. 1985, Cap. F-14?” 

The appeal was dismissed.

The Search and Section 8 of the Charter:

The Court of Appeal concluded that “it is no longer appropriate to address issues of searches and seizures pursuant to the Fisheries Act strictly in terms of whether the evidence was obtained as a result of an inspection or an investigation…in either situation, the issue to be resolved when considering an application to exclude evidence pursuant to s. 24(2) of the Charter is whether there has been a breach of the claimant’s rights under the Charter and this requires a contextual analysis of all the circumstances”  (at paragraph 107).    

The Court of Appeal held that though the trial judge approached the issue incorrectly, a breach of section 8 of the Charter had been established (at paragraphs 110 to 112):

In my opinion, viewing the totality of circumstances, and being mindful of the correct interpretation of the “open fields” principle, as discussed in Lauda one would conclude that while there may be a reduced expectation of privacy in a field as opposed to a home, a reduced expectation is nonetheless a reasonable one, and capable of attracting the protection afforded by s. 8 of the Charter.

Regarding the second line of inquiry, a contextual analysis would yield a finding that the search was unreasonable given the following facts: there was sufficient evidence to support the existence of reasonable and probable grounds to obtain a search warrant; as such, the fishery officers could not rely on the inspection provision in s. 49(1) of the Fisheries Act and should have obtained judicial authorization pursuant to s. 49.1 to enter the field and take foliage and water samples, video, photos and measurements; the degree to which the privacy right was infringed; and the manner of the search.  I will more fully deal with these issues later in these reasons.  These factors also impact a s. 24(2) inquiry when determining whether the evidence should be excluded.  It is my conclusion that the respondents had a reasonable expectation of privacy in their property and the search, not being reasonable, resulted in a breach of the s. 8 Charter rights of the respondents.

Even though the trial judge and SCAC judge did not conduct the two-step inquiry in the proper order, and in spite of rejecting the analysis in King, it is my view they both conducted a contextual analysis, and in doing so, arrived at the correct conclusion.

Section 24(2):

The Court of Appeal concluded that the trial judge did not err in excluding the evidence (at paragraphs 163 to 165):

The trial judge’s conclusions to exclude the evidence based on her finding that it would bring the administration of justice into disrepute, were based on her consideration of the Grant factors and were reasonable.  She was concerned from the beginning, believing that an investigation and evidence gathering was occurring, and hence, an increased requirement for Charter compliance; the need for a warrant as the breaches were not inadvertent or brief; and these considerations played an important role in her balancing the factors under s. 24(2).  The trial judge’s and the SCAC judge’s endorsement of her reasons found that the conduct of the fishery officers was not proper and had an impact on the Charter-protected interests of the respondents.  She took into account the seriousness of the offence and the strong societal interests in having the matter determined on its merits. 

I am of the view that the serious Charter-infringing conduct, even when coupled with a somewhat weaker impact on the Charter-protected interests of the respondents, supports a finding that admission of the tainted evidence would cause greater disrepute to the justice system than its exclusion. The court, who has the responsibility for the administration of justice, must not condone state deviation from the rule of law by disassociating it from the fruits of the unlawful conduct. The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.

The trial judge’s conclusions, endorsed by the SCAC judge were reasonable, were supported by the record, and I find there was no error in the application of law by either of them.