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 [1995] 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