PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION HER MAJESTY THE QUEEN LESLIE CAMERON KING

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1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: R. v. King 2008 PESCTD 18 Date: Docket: S1-GC-572 Registry: Charlottetown BETWEEN: AND: HER MAJESTY THE QUEEN LESLIE CAMERON KING APPELLANT RESPONDENT BEFORE: The Honourable Justice David H. Jenkins Appearances: Paul B. Adams, solicitor for the Appellant Jordan Brown, solicitor for the Respondent Place and date of hearing Place and date of decision Charlottetown, Prince Edward Island October 3, 2007 Charlottetown, Prince Edward Island March 25, 2008

2 Citation: R. v. King 2008 PESCTD Date: Docket: S1-GC-572 Registry: Charlottetown BETWEEN: HER MAJESTY THE QUEEN AND: APPELLANT LESLIE CAMERON KING RESPONDENT Prince Edward Island Supreme Court - Trial Division Before: Jenkins, J. Heard: October 3, 2007 Judgment: March 25, 2008 [5 pages] CRIMINAL LAW - Summary convictions - Appeal of acquittal - Charge of possession of undersized lobster contrary to Fisheries Act - Charter motion for unreasonable search and seizure contrary to s.8 - Finding of Charter breach followed by order excluding evidence and acquittal - Held on appeal there was no unreasonable search and seizure - Appeal allowed, decision set aside, and matter remitted back to trial judge for a new trial. CASES REFERRED TO: Re Milton et al. and the Queen (1986), 37 D.L.R. (4 th ) 694 (B.C.C.A.); Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.); R. v. McKinlay Transport Limited (1990), 55 C.C.C. (3d) 530 (S.C.C.); Potash Comite Paritaire de l'industrie de la Chemise et al. v. Selection Milton (1994), 91 C.C.C. (3d) 315 (S.C.C.); R. v. Kent (1991), 102 N.S.R. (2d) 181 (N.S.Co.Ct.); affirmed in R. v. Kent (1991), 109 N.S.R. (2d) 335 (N.S.C.A.); R. v. Kinnear, [1997] 151 Nfld. & P.E.I.R. 83 (P.E.I.S.C.A.D.); R. v. Wilcox, [2001] N.S.J. No. 85 (N.S.C.A). STATUTES REFERRED TO: Fisheries Act, R.S., c. F-14, s.49, s-s.49(1), s.49.1, s.51, s- s.57(2); Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, s.8, s-s.24(2); Criminal Code of Canada, R.S.C. 1985, Chap. C-46, s. 686(4)(b) REGULATIONS REFERRED TO: Atlantic Fisheries Regulations, 1985,SOR/86-2 Jenkins J.:

3 Page: 2 [1] This is a Federal Crown appeal of a decision of a trial judge to exclude evidence within a summary convictions proceeding. The impugned decision was made following a defence motion for exclusion based on breach of the accused s s.8 Charter right to be secure from unreasonable search and seizure. The decision led to a verdict of acquittal. The appellant asks this court to set aside the acquittal verdict and to order a new trial before a different provincial court judge. [2] The decision in issue dismissed an Information against the respondent on a charge of possessing undersized lobster contrary to s-s.57(2) of the Atlantic Fisheries Regulations, 1985, SOR/ [3] The accused is a fisherman, who operates out of the Georgetown Fisherman s wharf. He is also the Harbour Master/Wharfinger for the contiguous Georgetown Marine terminal. In that capacity, he has the charge of the Transport Canada warehouse on the Government Wharf. On June 27, 2006, fishery officers were in the area. After observing Mr. King s boat from a distance, they wished to speak with him. As they proceeded about, they came upon the warehouse on the Government Wharf and found the door wide open. They went through the open doorway of the warehouse and announced themselves, but no one answered. A fishery officer noticed a number of fish pans immediately inside the door that looked full of rope and a pile of lobster buoys. From the doorway, the fishery officers heard what he recognized as the sound of cracking lobsters coming from one of the fish pans. They proceeded into the warehouse to examine the pans and found lobster concealed beneath the rope in the pans. They measured some of the lobster and found that they were undersized. The lead fishery officer then placed himself within an inside widowed office in the warehouse and waited to see who would return and claim the lobster. Later, the accused entered through the open warehouse door, proceeded directly to the lobster pans, removed the rope, and picked up a couple of the lobster and put them back in the pan. The fishery officer then revealed his presence, told Mr. King that he was being detained for possessing undersized lobster, and gave him the police caution and informed him of his right to counsel. Mr. King admitted that the pans and ropes were his, but stated that the lobster were not. [4] The trial occurred on December 7 and 8, At the commencement of the trial, defence counsel introduced his motion for exclusion of evidence, and a voir dire occurred. Evidence and submissions were heard. [5] This appeal is brought pursuant to s.686(4)(b) of the Criminal Code. This provision permits this court to allow the appeal and set aside the verdict. [6] The applicable standard of review is: i) for questions of law, correctness ; ii) for questions of fact, palpable and overriding error ; iii) for questions of mixed fact and law and inferences of fact generally palpable and overriding error. The appellant s grounds involve proper interpretation and application of a Charter provision, which being a legal standard,

4 Page: 3 involves a question of law. The appeal grounds also ask this court to both consider whether the law was properly applied and to revisit the evidence and the trial judge s reasons regarding I) reasonable expectation of privacy held by the accused with respect to the warehouse; ii) the totality of the circumstances; iii) the circumstances of the inspection or search and the seizure and (iv) if there was a Charter breach, then the pertinent circumstances for consideration by the trial judge in her deliberation regarding s-s.24(2). Where the review involves revisiting the trial evidence, the standard of reasonableness applies, unless there was also an error of law by not considering and applying a legal test. The submissions of the parties move back and forth between questions of law and questions of fact, and so in this review, the applicable standard depends on the particular matter under consideration. [7] Upon considering all of the grounds and the related submissions, and the decision of the trial judge in the context of the evidence, I have concluded that the appeal is determinable on the threshold issue of whether or not there was an unreasonable search and seizure. I have concluded that there was not, and that the trial judge s reasoning was influenced by an error of law that materially affected her analysis and conclusion. [8] The trial judge rendered a thorough decision. She commenced by addressing the right to privacy that is enshrined in s. 8 of the Charter of Rights and Freedoms, and she canvassed the leading case law on the general propositions in that regard. The trial judge recognized that the Fisheries Act sets out a very detailed regulatory system. She expressed her view that the key provisions as far as this case is concerned are s.49 which deals with inspection, and s. 49.1, which deals with searches. She then assessed the case in that context. [9] The source of the error which occurred was that the trial judge did not take into account all of the applicable provisions of the Fisheries Act regulatory scheme. In particular, she did not take into account s.51 of the Fisheries Act, which permits seizure of fish including undersized lobster, and stipulates: 51. A fishery officer... may seize any... fish... that the officer... believes on reasonable grounds was obtained by or used in the commission of an offence under this Act or will afford evidence of an offence under this Act, including any fish that the officer... believes on reasonable grounds a) was caught... in contravention of the this Act or the regulations; or... [9]Had the trial judge considered that provision, she would not have concluded as she did that the Fisheries Act does not give the fishery officers the ability to seize the undersized lobster. [10] In all the circumstances, a conclusion that considered s.51 and found that there was no unreasonable seizure would also have revised the trial judge s assessment that there was an

5 Page: 4 illegal search. If she found there was no unreasonable search, she would have denied the motion to exclude evidence. If she still found there was an unreasonable search, the presence of statutory authorization for the seizure would have materially influenced her deliberations on the appropriate interpretation and application of s-s.24(2) of the Charter. [11] The trial judge found that the fishery officers had acted within their legal authority under s. 49(1) of the Fisheries Act in everything they did up to the point of measuring the lobster. She found that they believed on reasonable grounds there was fish to which the Act applied in containers within the building, and that they were authorized when they entered the building through the open door, checked the containers to see what they could see and what was making the cracking noise that they were hearing, and then measured some lobsters. The trial judge found that exercise to be the limit of the lawful authority of the fishery officers. She found that the statutory provisions under which she stated they were operating did not give them the right to search the property or to seize the undersized lobster in the containers. The trial judge conducted an extensive analysis of the operation of ss. 49 and She found that s. 49 deals with inspections, and s.49.1 deals with searches. She found that the fishery officers could not have proceeded further without a warrant. [12] Section 51 specifically authorizes a fishery officer to seize fish that he believes was obtained or used in the commission of an offence under the Act, and s.51 applies to seizures made with or without a warrant. Having found as she did that the fishery officer had validly entered the building, inspected and measured the short lobster, and replaced them in the pans, all pursuant to their statutory inspection powers, the seizure that followed would have been valid under s.51. [13] In my view, had the trial judge taken s.51 into account, she would not have made a finding of an illegal seizure. In my assessment, the discovery of the undersized lobster having been found by the trial judge to be the result of a lawful exercise of the fishery officers inspection powers pursuant to s-s.49(1), the fishery officers were then legally entitled to seize evidence discovered during the course of that inspection. Delay of the seizure until Mr. King associated with the undersized lobster had no bearing on the legality of the inspection or of the fishery officers lawful authority to seize. [14] Consideration of the statutory provisions of ss. 49 and 51 together is consistent with proper statutory interpretation. It is also consistent with the jurisprudence that holds that it would be impractical to require fishery officers who, in exercising their inspection powers, decide on reasonable grounds that there has been a contravention of the Act to obtain a search warrant or authorization prior to making a seizure in the nature of the one in this case. See: Re Milton et al. and the Queen (1986), 37 D.L.R. (4 th ) 694 (B.C.C.A.). It is settled law that evidence seized pursuant to a lawful inspection is admissible. [15] This error of law can stand alone as a sufficient basis upon which to quash the decision on the motion, set aside the acquittal, and order a new trial.

6 Page: 5 [16] It appears that there was no unreasonable search either. I make this conclusion for two separate but related reasons. [17] First, s.49.1 does not appear to become involved in the circumstances of this case. If that is so, then should it be found to apply at all, the fishery officers did not contravene the statute. [18] According to the trial judge s reasons, it can be deduced that the fishery officers duly gathered all their evidence about the lobster pursuant to their s-s.49(1) inspection authority. The trial judge found that the fishery officers then continued to search the property without a warrant. Following the trial judge s reasons, and without reassessing the evidence, what the fishery officer was found to have done was not to continue to search the property for anything, but to have waited or hidden in an inner office within the warehouse until he observed Mr. King come back into the building and handle the lobster. The trial judge made no finding that the fisheries officer was searching for anything else. Section 49.1(2) stipulates the requirement to obtain a warrant to enter and search a place for the thing, the thing being something listed in the statute as a work or undertaking or fish that will afford evidence of a contravention. In this case, the officers had already discovered all the evidence of any such thing under their s-s. 49(1) power of inspection, and the trial judge had validated their actions. After that, they were not gathering more evidence of any thing described in the statutory provision. In all the circumstances, there is no need in this case to consider further than that the interplay between ss.49(1) and [19] There is a second reason for observing that there was no unreasonable search. The Supreme Court of Canada has clarified the general requirement for a search warrant as a precondition to a reasonable search and seizure and the corresponding presumption that a warrantless search would be presumed unreasonable and a violation of s.8 of the Charter as being a qualified rule. See: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.); R. v. McKinlay Transport Limited (1990), 55 C.C.C. (3d) 530 (S.C.C.); Potash Comite Paritaire de l'industrie de la Chemise et al. v. Selection Milton (1994), 91 C.C.C. (3d) 315 (S.C.C.). [20] Subsequent to Hunter v. Southam, the Supreme Court recognized that with respect to what has been labelled regulatory or administrative searches, it is unnecessary to comply with the Hunter v. Southam criteria. In other words, compliance powers in regulatory contexts (for example, inspection powers under s-s.49(1) of the Fisheries Act) are not inconsistent with s.8 of the Charter. In McKinlay, the Supreme Court of Canada distinguished between administrative searches and criminal searches. The Court held with respect to administrative and regulatory searches that the requirement for prior judicial authorization did not apply. The Court reasoned that in such seizures a lesser standard may apply depending on the legislative scheme under review. The regulatory provisions and consequences in the Potash Comite Paritaire de l'industrie de la Chemise et al. v. Selection Milton case made that case distinguishable on its facts, but the decision provides helpful guidance on the principle that

7 Page: 6 consideration of the context is required. The underlying purpose of inspection is to ensure that a regulatory statute is complied with: The rules in Hunter v. Southam requiring a system of prior authorization based on the existence of reasonable and probable grounds, do not apply to administrative inspections in the case of a regulated industrial sector, depending on the circumstances. The rationale for this lower standard is that where the activity is known to be regulated by the state there is a decreased expectation of privacy during the course of business. [21] This reasoning has been applied in fisheries cases. In R. v. Kent (1991), 102 N.S.R. (2d) 181 (N.S.Co.Ct.); affirmed in R. v. Kent (1991), 109 N.S.R. (2d) 335 (N.S.C.A.), the Court accepted the Crown contention that a licenced fisherman under the Fisheries Act regulations is voluntarily participating in a regulated and licenced industry, and correspondingly does not have a reasonable expectation of privacy to be protected. In Kent, it was held there that in a regulatory and administrative context persons subject to regulatory control must assume that those administering the regulations under which they operate can take reasonable measures to ensure compliance. In R. v. Kinnear, [1997] 151 Nfld. & PEIR 83 (P.E.I.S.C.A.D.), it was found that fishery officers when boarding a fishing boat and examining the catch were properly exercising their inspection function under s.49, and the fact that they were prompted to do so by a complaint did not change the character of what they were doing so as to require prior authorization under s Within that case, the P.E.I. courts adopted the thesis in the jurisprudence that a fisher is engaged in a highly regulated industry and therefore has a correspondingly low expectation of privacy with respect to his vessel and catch. In that case the degree of intrusion was found to be minimal. In R. v. Wilcox, [2001] N.S.J. No. 85 (N.S.C.A.) at paragraph 106, Cromwell, J.A. provides helpful advice toward employing a functional approach rather than strict and arbitrary lines when determining whether or not the regulatory regime and the circumstances involve a Charter infringement. [22] Consideration of these two reasons together points to the conclusion that there was no unreasonable search in the circumstances. The fishery officers already had their evidence of short lobster, which the trial judge found they had validly obtained under their statutory powers of inspection. Their impugned act was waiting and watching from within a warehouse, which was a limited access building that was used by a number of public agencies for a variety of purposes. The doors had been left wide open so that the fish trays could be easily seen from inside and out, and all concerned were aware of all the circumstances of the building and of regulation within the lobster fishery. [23] I consider the foregoing findings and reasons sufficient to fully address this appeal. I have found that there was no violation of the Fisheries Act, and that the activities of the fishery officers do not appear to have constituted an unreasonable search and seizure. Their being no Charter breach, it is unnecessary for me to go on and consider regarding s.8 of the Charter whether or not the decision of the trial judge was reasonable on the questions of i) reasonable expectation of privacy, and ii) trial judge s assessment of totality of the

8 Page: 7 circumstances. Regarding the s-s.24(2) ground, the reasons for judgment state that the trial judge viewed the activities of the fishery officers as very serious, and that her assessment of the seriousness of the Charter breach was based on many factors including i) her application of the Hunter v. Southam criteria for reasonable expectation of privacy; ii) an illegal seizure having occurred, and iii) an illegal search having taken place. Should the motion some how proceed again, then there should be a reevaluation of each of those premises in accordance with these reasons, which would undoubtedly affect the deliberations and the conclusion. [24] The decision on the motion for exclusion of evidence is quashed, the verdict of acquittal is set aside, and the matter is remitted for a new trial. I am not prepared to rule that the trial should be before a different judge. The motion was heard within a voir dire at the commencement of the trial. The trial judge and the parties may well choose to incorporate the evidence on the voir dire. It will be left to the Provincial Court to determine whether the new trial is heard before the same or a different trial judge, and it will be left to the trial judge to conduct the trial in any event taking into account these reasons for judgment. March 25, 2008 Justice David H. Jenkins