Search and Seizure - Case Summaries
The database contains 20 case summaries relating to Search and Seizure. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Search and Seizure - S. 49 right to Inspect
Misc. - Obstruction by refusing to allow inspection and refusing to identify self
R v. Strickland, 2016 CanLII 2781 (NL PC)
This case involved a fisheries officer and two fisheries guardians who were conducting a patrol in a Zodiac when they observed the accused in his dory. Although they were some distance away, they thought they observed him fishing. The fisheries officer motioned for the accused to come over to the fishing vessel, but instead the accused drove his dory on to a nearby beach in front of his cabin. The accused gave evidence that he was not fishing at the time, but was filling his engine with fuel. He said he observed the request to go over to the fisheries vessel, but felt that because of the sea conditions, strong current and shoals close by, it was not safe. Instead he motioned for the fisheries office to conduct the inspection on the beach where he had previously seen a similar Zodiac land on a previous occasion. At a later time, the accused refused to provide the fisheries officer with his name. As a result of these actions, the accused was charged with obstruction under s. 62 of the Fisheries Act.
In deciding the case, the Court reviewed the obstruction provision of both the Criminal Code and the Fisheries Act.
The Court also reviewed the inspection powers under s. 49 and concluded that it incorporated the traditional subjective-objective test (para. 39), which it described as follows:
"[I]n determining whether a fishery officer or guardian was carrying out duties and functions pursuant to section 49 of the Fisheries Act, the officer or guardian must have a subjective belief that there is something in the place to be searched in respect of which the Fisheries Act or regulations apply. The search must be for the purpose of ensuring compliance with the Fisheries Act or regulations. In addition, the officer’s or guardian’s belief must be objectively reasonable in the circumstances."
Given the fact that Fisheries Offences are strict liability offences, the Crown does not have to prove that the accused intended that his act would hinder or obstruct. However the Crown does have to prove the the act of obstruction was purposely committed. Once the Crown has proved the actus reus (prohibited act) it is open to the accused to prove he or she took all reasonable steps to avoid obstructing or hindering the fisheries officer.
After reviewing the law,including the burden of proof and the facts, the Court rejected he Crown's evidence that the accused was fishing at the time he was observed. Accordingly they did not have an objective belief to support a s. 49 inspection. As a result the accused did not have a lawful obligation to stop the dory for an inspection.
Given the fact that an inspection was not lawful under s. 49, it followed that the accused's subsequent refusal to identify himself was also lawful.
Given all of the findings, the Court found that the actus reus (prohibited act) of the offence was not made out and acquitted the accused.
Offences - Search and Seizure - Seizure of Fish from Fish Plant under Criminal Code - Application for Continued Detention -
R v. Classic Smokehouse (2003) Inc., 2012 BCPC 232
This entire decision deal with the question of whether fish seized pursuant to the Criminal Code should be detained for a period in excess of 90 days. However, it is arguable that the Criminal Code is not applicable to either the seizure of fish or for orders for continued detention. In this regards see R.v. Ulybel Enterprises Ltd., 2001 SCC 56 at paragraphs 36-7 and Gladstone v. Canada (A.G.), 2005 SCC 21 at paragraph 9.
Offences - Search and Seizure - Habitat Inspection of Partially Enclosed Commercial Property - No Reasonable Expectation of Privacy - Predominate Purpose Test Rejected - R. v. Jarvis Distinguished
R v. Mission Western Development Ltd., 2012 BCCA 167
Aboriginal Rights and defences - Roadside Inspection for Game - Whether breach of s. 7 & 10(b) charter rights to search and take statement after conservation officer had reasonable and probable grounds
R v. Rice, 2009 BCCA 569
This case involved charges of illegal hunting and possession of moose by three aboriginal hunters. Although not a fisheries case, it is relevant to fisheries prosecutions because (1) it involved an inspection under s. 95 of the B.C. Wildlife Act, which is similar to an inspection under s. 49 of the federal Fisheries Act; (2) it applied the test formulated in the Supreme Court of Canada fisheries case of R. v. Fitzpatrick,  S.C.R. 154; and (3) it is one of the first post R. v. Grant appellate decisions (digested here) dealing with search and seizure in regulatory prosecutions.
The background facts are that a conservation officer was conducting a road side inspection under s. 95 of the Wildlife Act at a time when moose hunting in the area was closed except for aboriginals from that specific area. When the conservation officer asked if the three occupants of the motor vehicle had been hunting, one occupant responded in the affirmative. When ask if they had shot anything, they answered in the affirmative and produced status cards showing that only one of the three status aboriginals were from the immediate area. When asked what was shot, one of the occupants, who was not from the immediate area, admitted to shooting a moose that was in the back of the motor vehicle.
At trial and the ensuing appeals, the issues were:
Whether or not the admission of shooting the moose should be excluded from evidence pursuant to (1) s. 7 of the Charter for interfering with rights of liberty (because of threat of imprisonment) and fundamental justice (because of self-incrimination) and/or (2) s. 10(b) of the Charter for failing to provide a right to counsel when detained.
With respect to the s. 7 rights, the accused argued that his rights were breached because he was compelled to answer incriminating questions after the conservation officer had established reasonable and probable grounds to believe an offence had been committed. In determining whether or not the s. 7 rights of the accused had been breached the court applied the four-part test from R. v. Fitzpatrick as adopted and applied in R. v. White,  2 S.C.R. 417, namely (1) existence of coercion; (2) existence of an adversarial relationship between the accused and the state; (3) the risk of an unreliable confession in a statutorily compelled confession; and (4) whether use of the statement would increase the likelihood of abuse by the state.
With respect to the existence of coercion, the Court followed the Fitzpatrick decision and ruled that "the obligations imposed upon the accused hunter were imposed as a result of voluntary participation in hunting, a highly regulated activity." Accordingly, as in the case of Fitzpatrick, the requirement to provide information regarding hunting activities was not considered coercive (para. 61).
With respect to the existence of an adversarial relationship, the Court followed R v. White to hold that even though the conservation officer had reasonable grounds to believe that an offence had occurred, since the dominant purpose of the questioning was not the investigation of an offence, the relationship was not considered adversarial for the purpose of the test.
The Court also ruled that the items 3 and 4 of the Fitzpatrick test did not apply.
With respect to the s. 10(b) right to legal counsel, it was argued by the accused that he should have been advised of his right to counsel and been provided with an opportunity to consult with counsel before being asked who shot the moose. For reasons similar to those articulated with respect to s. 7 of the Charter, the Court ruled that the accused must be deemed to have consented to be detained by virtue of his participation in the licenced activity. Although the roadside stop and questioning could be considered a detention as in the sense used in the case of R. v. Subaru, 2009 SCC 33 (a companion case to R. v. Grant referred to here), this form of investigative detention did not trigger a right to counsel. As was the case with the s. 7 analysis, there was no infringement despite the fact that the conservation officer had reasonable and probable grounds to believe an offence had occurred because "the purpose of s. 95 and all the questions asked by the officer was to obtain truthful information about compliance with the Act" (para. 74). Given the Courts reference to R. v. White in the same paragraph, presumably the Court meant "predominate" purpose.
Editor's note: As a result of this case, some earlier cases such as R. v. Kinghorne, 2003 NBQB 341 (digested here) may no longer be good law. Some of these earlier cases held that an inspection was transformed into a search when credibly based probability replaced suspicion. In this regard, see also the references in this case to R. v. Jarvis 2002 SCC 73 [link] at pargraphs 41-8.
Search and Seizure - Analyticial Framework
R v. Grant, 2009 SCC 32
This is a non-fisheries decision that purports to provide a new analytical framework for (1) determining whether or not there has been a detention for the purpose of ss. 9 and 10(b) of the Charter; and (2) determining whether or not to exclude illegally obtained evidence under s. 24(2).
With respect to its application to fisheries cases, at paragraphs 78 and 113-14, it is similar to the fisheries case of R v. Fitzpatrick  4 S.C.R. 154 (paragraphs 49-51) with respect to its emphasis on the expectation of privacy as a matter to be considered under the s. 24(2) analysis. In particular, at stage two of the newly formulated test, expectation of privacy is one of the factors to be considered in assessing the impact of the impugned state conduct on the interest protected by the infringed charter right. Given the court's reference to R. v. Buhay 2003, SCC 30 [link] at para. 113, it would appear that reasonable expectation of privacy is also still relevant to the issue of whether or not there has been a breach of the s. 8 right against unreasonable search a seizure.
Offences - Search and Seizure - Waiver of Right to counsel
R v. Boudreau, 2009 NSPC 26
This case involved a motion during a trial to exclude a statement made by the accused to a fisheries officer. Prior to the making of the statement the accused had been given a Charter warning and had advised that he did not want to call a lawyer "at this time". Based upon the British Columbia Provincial Court decision of R. v. Liddell,  B.C.J. NO. 947, defence counsel argued that the words not "at this time" did not amount a waiver. The Nova Scotia court refused to follow the B.C. court and held that there had been a valid waiver.
The court also rejected an argument that the accused must be offered access to a lawyer with expertise in fisheries matters.
Offences – Misc. – Obstruction – Search and Seizure - Search and Seizure
R v. King, 2008 PESCTD 18
Upon summary conviction appeal, the appeal court ruled that the act of waiting and watching some undersize lobster that had been discovered pursuant to a legal inspection under s. 49(1) of the Fisheries Act, "from within a warehouse, which was a limited access building that was used by a number of public agencies for various purposes" (para. 23) did not amount to an illegal search.
Offences - Search and seizure
P v. Diep , 2005 ABCA 54
This case involved a s. 8 Charter challenge of a warrantless inspection/search of a fish farm facility which in addition to finding unlicensed fish also discovered a large marijuana grow operation.
The appeal court upheld the validity of the search for the following reasons:
In R v. Jarvis  3 S.C.R. 757, the Supreme Court of Canada has said that "even after the authorities determined that a breach of a regulatory statute has occurred, the authorities may continue with the inspection provided that the predominant purpose of the inquiry remains the determination of statutory compliance (para.9); and
There was a low expectation of privacy given that this was a government regulated activity, particularly in light of the need for food safety
Offences - Search and Seizure - seizure of documents subsequent to inspection pursuant to s. 49 of the Fisheries Act not violation of s. 8 of the Charter - Powers to seize and detain evidence pursuant to S. 51 and 71(1) of Act do not violate s. 8 of the Charter.
R v. Leahy , 2004 NSPC 62
Offences - Search and Seizure - Aboriginal Rightrs and Defences - Constitutionally protected Narwhal fishery; Demand by fisheries offices to attend at fisheries office with illegally harvested Narwhal tusk - No credibly based suspicion sufficient to trigger statutory power of inspection - s. 7 invoked to exclude inculpatory admissions-
R v. Kooktook , 2004 NUCJ 7
Offences - Search and Seizure - No reasonable expectation of privacy in premises of third party - Also sufficient ground for inspection
R v. Morrel, 2004 NSPC 4
Not yet available.
Offences - Exceeding Permitted Count of Scallop Meat - Due Diligence - Mistake of Fact - Search and Seizure - second search after arrival at home port
R v. Kinghorne , 2003 NBQB 341
This case involved a charge of having on board a fishing vessel scallops having more than the permitted average count of 45 meats per 500 grams. At trial a number of defences were raised including (1) illegal search, (2) due diligence, and (3) mistake of fact.
With respect to the due diligence and mistake of fact defences, the accused unsuccessfully argued at trial that he was duly diligent by employing the "milk can" method of measurement recommended by a local fisheries officer. After a lengthy review of the jurisprudence and the facts, the summary conviction appeal court upheld the trial court's rejection of the due diligence defence. In doing so, it note that the accused did not produce the milk cans at trial for inspection by the court. In addition, there was no evidence of the qualifications of the designer of the system, there was no evidence that the system put in place by the accused was the same as the system recommended, and there was no evidence of any satisfactory measures taken to verify the accuracy of the system.
Offences – Search and seizure – Roadside inspections
R v. Stengler, 2003 SKPC 119
This case involved a charge of exceeding a possession limit arising out of evidence obtained during a roadside search of a motor vehicle. The search was performed pursuant to s. 24 of the Fisheries Act (Saskatchewan), 1994. This section allows for search of a motor vehicle “[w]here due to circumstances, time or location, there could reasonably be expected to be a high incidence of offences . . .”. The issue was whether this section of the Act and/or the subsequent search contravened ss. 8 and 9 of the Charter.
Given the fact that the search provisions do not require reasonable and probable grounds to suspect that an offence has been committed, the court relied upon obiter comments in the decision of Denys v. R.  S.J. No. 341 (Sask. C.A.) and other cases to find the impugned section contrary to the Charter. With respect to justification under s. 24 of the Charter, the court rejected an argument that the expectation of privacy was reduced by virtue of fishing being a regulated activity on the basis that many of the persons stopped were not taking part in the regulated activity. Since the Crown did not call adequate evidence to meet the test set out in R. v. Ladouceur  1 S.C.R. 1257, the court did not find the infringement to be justified under s. 24. With respect to exclusion of evidence under s. 24(2), the court held that the Fisheries Department had been wilfully blind to the comments of the Saskatchewan Court of appeal in Denys v. R. regarding a very similar provision. Accordingly, the evidence was excluded, as its admission would bring the administration of justice into disrepute.
Practice – Release of Fishing Vessels from Seizure Offences – Search and Seizure - Application For Continued Detention
R v. McDonald , 2002 NSCA 135
This case involved an application under s. 71(4) of the Fisheries Act on behalf of a number of First Nations fishermen to have seized gear returned pending trial on charges of illegal fishing. At issue was whether or not the Crown had to make application under s. 71(4) of the Act if they wished to retain seized gear for more than 90 days. The fishermen argued that such an application was always necessary, but the court held that such an application was only necessary if proceedings were not instituted within 90 days. The Motions Judge accepted the argument of the Crown and held that such an application was only required if proceedings were not commenced within 90 days.
Upon denying an application for certiorari against the decision of the trial judge, the court held that although “it seems there is a failure in the legislation to have the issue of interim possession of important items determined judicially”, in quasi-criminal matters such as Fisheries Act prosecutions there are no interlocutory appeals except in exceptional circumstances.
Upon appeal, the court upheld the decision of the motions judge. In doing so, the court refused to follow the obiter comments of the court in R. v. Hung Van Nguyen (2000) Surrey Registry No. 107078-01 (B.C. Prov. Ct.).
Editor’s Note: With respect to the obiter comments in R. v. Hung Van Nguyen, in a subsequent case the judge in R. v. Hung Van Nguyen also made a decision that was inconsistent with his prior obiter comments. For another case, which also holds that a Crown application is only required if proceedings are not instituted within 90 days, see: R. v. Peter Paul 2001] N.S.J. NSPC 1 (N.S. Prov. Ct. – Batiot C.J. Prov. Ct.) (digested herein).
Offences – Search and seizure - person non involved in fishery but in peripehery - Misc (obstruction & def'n of fishing)
R v. Rhyno , 2002 NSPC 8
This case involved a crab boat that was owned by a group of fishermen who were under suspicion for illegal crab fishing. Although the vessel had not engaged in commercial fishing for some time, it was outfitted for fishing, it was tied up to a dock with crab traps piled upon it, and on the day in question, it had left the dock at 7:00 p.m. in the evening and returned one hour later. Upon the vessel being approached by uniformed fisheries officers, the accused left the boat and refused to produce identification when asked to do so. As a result of his refusal, he was arrested for obstruction.
One of the issues at trial was whether the provisions of the Fisheries Act and regulations regarding inspections applied to “someone not proven to be involved in the fishery but, at most, only on the periphery or with the opportunity to be involved” (para. 17).
In finding the accused guilty of obstruction, the court took the expansive view of fishing from R. v. Newell  N.S.J. NO. 413 to the effect that fishing includes the whole voyage from wharf to wharf. The court said that although there was no evidence that the accused was actually involved in the fishery, the fisheries officers “had reason to suspect the vessel was one which fell within s. 49(1) of the Act justifying the inspection of a “place” and that . . . [the accused], ‘a person found in the place’ would be obliged to provide information as contemplated by s. 49(1.20(B) of the Act” (para26).
Offences - Search and seizure -Duty of Owner or Person in Charge of Place to Give All Reasonable Assistance - Misc. (obstruction)
R v. Robie , 2001 BCSC 1572
This case involved a fisheries officer who was inspecting a property under s. 49 of the Fisheries Act to see if logging on the property had any impact on fish habitat. While attempting to question the woman who was the owner of the property in question, her husband, the accused, aggressively placed himself between his wife and the fisheries officer, preventing him from even attempting to communicate with the property owner and ordering him off the property.
At trial, the husband was convicted of obstruction.
One of the issues arising at the summary conviction appeal was whether questioning of the owner of the property at her ranch house, away from the waterway was authorized under the Fisheries Act.
In holding that the search was valid, the appeal court referred to s.49(1.2) of the Act which provides that the owner or person in charge of a place stall (a) give all reasonable assistance and (h) provide the officer with any information he or she may reasonably require.
The second issue was whether or not the conduct of the property owner’s husband amounted to obstruction. In upholding a conviction for obstruction, the summary conviction appeal judge said as follows:
This was not simply saying rude words or unpleasant words. There was a phvsical stance, body language and viewed totally, a course of conduct which was intended to impede and hinder the officer and obstruct him from what he was attempting to do . . . (para. 5)
Aboriginal Rights and Defences – Buying and selling salmon caught under authority of a food fish licence - Offences - Search and Seizure - Affidavits in Support of Search Warrant Containing Erroneous and Unsupported Evidence as well as material non-disclosure.
R v. Q.M.P. Fisheries Ltd. et al, 2001 BCPC 210
This case involved charges of buying and selling salmon caught under the authority of a food fishing licence.
This judgment was a ruling on a voice dire concerning the admissibility of documents seized under the authority of two search warrants issued under s. 487 of the Criminal Code.
The court reviewed the affidavits filed in support of the affidavits and concluded that they contained erroneous and unsupported evidence. The court also concluded that there was material non-disclosure. Accordingly, it ruled that the search had violated the Charter. In ruling that the evidence obtained as a result of the violation should be excluded, the court said as follows:
In the public and highly polarized environment of the salmon fishery on the Fraser, it is important the authorities act in accordance with the law, inform themselves of their obligations under the Charter of Rights and Freedoms and act in accordance the these obligations. The D.F.O. should provide its officers with the resources to do so. Given the seriousness of the breaches, the lack of good faith, I am satisfied on the balance of probabilities that the administration of justice would suffer greater disrepute from the admission of the evidence than from the exclusion.
Offences – Search and Seizure - Misc. – Evidence – Admissibility of Plant Fish Book – Principled Exception to Hearsay Rule
R v. Wilcox , 2001 NSCA 45
This case involved a large number of charges against a snow crab fisherman who was alleged to have conspired with two dockside observers to land catches of snow crab in excess of his quota.
Amongst other things the case concerned the admissibility of a “fish book” containing a hand written table of dates, names, quantities of fish and values of fish. This fish book was prepared by a clerk at the fish plant, despite the fact that he was instructed by his employer to only record information in a computer. The fish book was first discovered during an off season inspection of the fish plant made pursuant to 49(1) of the Fisheries Act. After the fish book and other documents were observed, the fisheries officers then obtained a warrant pursuant to s. 49.1 of the Act based upon the information obtained during the inspection and seized the fish book. One of the issues at trial was whether or not the initial inspection pursuant to section 49 of the Act was legal.
In holding the “inspection” to be valid, the trial court rejected defence arguments that D.F.O. exceeded its authority, firstly, by inspecting a fish plant which did not hold a fishing licence, and secondly by conducting the inspection after the fishing season had closed. It held that so long as the fisheries officers had not reached a point where they had reasonable and probable grounds to believe an offence had occurred, it was not necessary for them to obtain a warrant under section 49.1 of the Act.
The trial court also rejected defence arguments that the “inspection” violated the Charter. In doing so, it referred to R. v. Fitzpatrick  4 S.C.R. 154 [link] for the proposition that in a regulated activity such as the fishing industry there is not a high expectation of privacy.
Upon appeal, the court upheld the decision of the trial judge. In doing so, it accepted the trial court’s findings that the fisheries officers had not yet reached a point where they had reasonable and probable grounds to believe an offence had been committed.
With respect to the Charter, it was argued by defence counsel that section 49 of the Fisheries Act must be applied so as to limit its operation to the regulatory context rather than to permit its use for investigative purposes. That is, where an investigation is under way, resort to a regulatory inspection infringes sections 7 and 8 of the Charter.
In a very analytical judgement, the court reviewed these arguments at length with a thorough review of the applicable authorities. In doing so, it followed the R. v. Fitzpatrick line of authorities to conclude that “the requirements of ss. 7 and 8 of the Charter, as developed in the context of criminal law, should be applied more flexibly in this regulatory context” (para. 110). With respect to s. 7 (life liberty and security of person), the court applied the tests set out in R. v. Fitzpatrick and R. v. White to conclude that the inspection and subsequent seizure of the fish book did not offend s. 7.
With respect to section 8 (unreasonable search and seizure), the court concluded that in the circumstances of the case, there was only “the most modest reasonable expectation of privacy” (para. 121). In rejecting the argument that there had been a breach of section 8 of the Charter the court said “I do not accept the proposition that an inspection of business premises in the fisheries context engages the Hunter requirement of prior judicial authorization where the officers are investigating a suspected offence but do not have reasonable and probable grounds to obtain a search warrant” (para. 121).
Editor’s note: See also the digest of this case under “Offences – Misc.” with respect to the application of the principled exception to the hearsay rule
Offences - Search and Seizure - Illegal Motor vehicle search for Abalone does not offence s. 24(2
R v. Sandover-sly, 1999 CanLII 15129
Offences - Search and Seizure
R v. Kinnear , 1997 CanLII 4567
Fisheries officers on a patrol had a suspicion that the accused might have undersize lobster on his vessel but did not have reasonable and probable grounds for believing so. Undersize lobsters were found as a result of a search /inspection of the vessel. The issue was whether the officers searched the vessel under section 49.1 of the Fisheries Act which required a warrant, or whether they inspected the vessel pursuant to section 49 of the Act.
The Summary Conviction Appeal Court reviewed the definitions of "search" and "inspection" and concluded that the officers had conducted an "inspection". Accordingly, it ruled that a search warrant was not required. In making its ruling, the court said as follows:
In this case, the activity (lobster fishing) is permitted only under a license issued pursuant to the Fisheries Act. It is a highly regulated activity. The premises sought to be inspected was a lobster boat. The Lobsters, which were the items sought to be inspected, are kept on the open deck. Fisheries Officer, Sheidow, testified he saw lobsters in the boat before he boarded it. In these circumstances, given the highly regulated nature of the activity sought to be inspected, the nature of the facilities, or premises, and the subject matter being inspected, the respondent had very little expectation of privacy.
The Court of Appeal also noted that the degree of intrusion was minimal and upheld the decision of the Summary Conviction Appeal Court.