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, [1995] 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, [1999] 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.