R v. Stengler

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

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. [1995] 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 [1990] 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.