Précis: The court held that the Charter rights of the accused were infringed when Transport Canada inspectors seized evidence without a warrant.
Facts: In April of 2015 oil allegedly spilled from the ship “Marathassa” while at anchor in English Bay, Vancouver. Transport Canada Inspectors boarded the vessel and seized certain documents and evidence. The ship was later charged with various regulatory offences. During the course of the trial the Crown sought to introduce the evidence obtained from the vessel by the Transport Canada Inspectors. The accused applied to exclude the evidence on the basis that it was obtained in breach of the accused’s section 8 Charter rights which provide a right against unreasonable search and seizure.
Decision: The evidence is excluded.
Held:The first issue concerns the reason for the attendance of the Transport Canada inspectors on the “Marathassa”. The parties are agreed that if the inspectors were conducting a compliance inspection under s. 211 of the CSA, the seizures are lawful, however, if they were conducting an enforcement investigation under s. 219 (investigation into a shipping casualty or a contravention of regulation/statute), they were required to obtain a warrant or informed consent. The evidence is overwhelming that Transport Canada was conducting an enforcement investigation from the moment inspectors boarded the “Marathassa”. Therefore, a warrant or informed consent was required.
The second issue is whether there was a breach of the accused’s s. 8 Charter rights. This requires first that the accused establish it had an expectation of privacy. After the expectation of privacy is determined, the enquiry moves on to consider if the search was reasonable. Although the Marathassa was subject to inspections by Transport Canada and would have a diminished expectation of privacy on account of such inspections, it did have an expectation of privacy in relation to much of the conduct of the inspector. In respect of whether the searches were reasonable, there is a presumption that a warrantless search is unreasonable. The Crown has failed to discharge the onus on it of proving the search was reasonable.
The final issue is whether the admission of the evidence would bring the administration of justice into disrepute. This requires consideration of (i) the seriousness of the Charter-infringing conduct; (ii) the impact of the breach on the Charter-protected rights of the accused; and (iii) society’s interest in the adjudication of the case on its merits. In this case there was deliberate and repeated infringements of the accused’s charter rights which amounted to bad faith. The impact of these breaches was not trivial. Finally, considering that the exclusion of the evidence will not “gut” the prosecution’s case and that the spill was “very, very small” a reasonable person would conclude that the evidence should be excluded.