BC Court of Appeal Further Blurs the Line Between Regulatory Investigations and Inspections


This is the first of two blog posts on the statutory powers of investigation and inspection granted under the federal Fisheries Act, examined through the lens of a recent series of cases beginning with R v Mission Western Developments Ltd., 2010 BCPC 274, involving a property developer charged with harmful alteration of fish habitat contrary to section 35 of the Fisheries Act. The topic is an important one because the constitutionality of an investigation or inspection will depend on whether a Fisheries Officer has reasonable and probable grounds to believe that a breach of the Act has occurred. Briefly, an investigation occurs where a regulator is trying to gather evidence in support of a prosecution, and an inspection occurs where a regulator is seeking to monitor general compliance without the predominant purpose of collecting incriminating evidence. Investigations require a warrant under section 49.1 of the Fisheries Act; inspections under section 49 do not.

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