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.
In this case, a property developer hired a Bobcat to clear brush adjacent to a stream on his property. A biologist with the Department of Fisheries and Oceans (“DFO”), who happens to walk by the site on her daily walk to work, notices the Bobcat. She calls her colleague, a Fisheries Officer, and the two of them attend the site later that day. Neither one sees a “no trespassing” sign posted on the property, and they enter the property through an open gate. The Fisheries Officer interviews the bobcat operator and orders him to stop work. The DFO employees conduct a search and take notes and pictures of the work near the stream. Some time later, using the evidence gathered at the site that day, the property developer is charged with harmful alteration of fish habitat contrary to the Fisheries Act. Is the evidence gathered by the DFO Officer admissible in the prosecution?
Gardner J of the British Columbia Provincial Court held on a voir dire that the Fisheries Officer’s evidence is not admissible because it was gained through an unreasonable search contrary to section 8 of the Charter, and should be excluded under section 24(2) of the Charter. That decision was overturned by Grist J of the Supreme Court in 2011 BCSC 1378, and Bennett JA of the British Columbia Court of Appeal recently denied leave to appeal.
In my view, Gardner J of the Provincial Court was correct.
The critical consideration is the scope of the Officer’s statutory authority under the Fisheries Act to enter the premises. The trial judge found that the DFO Officers entered the premises to conduct an investigation. They were not there to “inspect”. Statements were taken, observations were made and photographs were taken. The officers could have inspected, went away and obtained a warrant.
Grist J, by contrast, found that the Officer’s attendance at the site was typical of an inspection of fish habitat under section 49(1) of the Fisheries Act, which section does not require a warrant prior to entry. In reaching this conclusion, Grist J focused on whether there was a continuing regulatory purpose (and not a continuing statutory authority) on which to ground the exercise of the regulatory power. Having found that there was a continuing regulatory purpose, Grist J turned to the issue of whether the officer’s search infringed the accused’s reasonable expectation of privacy, to determine whether section 8 of the Charter was engaged. He found that section 8 was not engaged because the defendant had a diminished reasonable expectation of privacy in the property relating to the DFO inspection, and accordingly, sent the matter back for retrial for consideration of the Officers’ evidence.
Bennett JA of the Court of Appeal denied leave to appeal, agreeing with Grist J that the trial judge had employed the wrong test, thereby sending the back to Provincial Court for a retrial.
Leaving aside a criticism of whether the appeal courts misinterpreted the proper test to be applied for a future blog post, this post focusses on Bennett JA’s statement, that “the DFO employees’ actions always took place, broadly speaking, in a ‘penal’ or ‘adversarial’ context, in the sense that section 49(1) of the Fisheries Act grants powers of entrance and inspection ‘for the purpose of ensuring compliance with this Act and the regulations’”.
Determining whether a regulator’s actions are in the nature of an investigation or an inspection is of crucial importance in determining the constitutionality of a regulator’s actions. With at least one judge of the BC Court of Appeal characterizing a routine inspection under section 49(1) of the Fisheries Act as occurring in the “penal” context, it will be more difficult to draw the line between investigations and inspections. If an inspection can now be characterized as “penal”, in what circumstances will it be necessary to obtain a warrant under section 49.1?
Arguably, the effect of Bennett JA’s decision in R v Mission Western Developments is to add to the field of inspection what is taken from the field of investigation. The more a routine inspection under section 49(1) is allowed to resemble that of a penal investigation under section 49.1, the less protection there is against a breach of an accused’s section 8 Charter rights.
This decision serves as a reminder of the need for project operators to be vigilant in dealing with regulatory inspections and investigations. If an inspector or investigator visits, clearly establish the purpose of every visit each time on an objective basis. Different considerations arise if the inspector is there on a routine inspection, for example, or if the investigator is there following up on an earlier incident. Where, on an objective test, the investigator has reasonable and probable grounds to believe an offence has been committed, a warrant is required. With the greatest of respect for Bennett JA, this is when the “penal” contest arises, and not before. Once inspectors operating pursuant to s. 49 of the Act characterize something as “penal”, they have overstepped their statutory mandate and possibly infringed the project proponent’s Charter rights.
 Hint: While the Supreme Court of Canada in R v. Nolet, 2010 SCC 24 held that the statutory authority for a search and the reasonableness of its exercise are two distinct issues, both the BCSC and Court of Appeal lost sight of the requirement that a search must be grounded in statutory authority to begin with, meaning that the reasonableness of its exercise cannot, as they seem to suggest, be determined in the abstract.
Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.