R v. Kinnear

In Fish Cases, Offences, Search and Seizure on (Updated )

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.