R. v. Fraser River Pile and Dredge (GP) Inc., 2020 BCPC 169 (CanLII)
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2020 BCPC 169 |
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Date: |
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File No: |
32744-3-C |
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Registry: |
Prince Rupert |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
FRASER RIVER PILE AND DREDGE (GP) INC.
STEWART BULK TERMINALS LTD.
RULING ON VUKELICH APPLICATION
OF THE
HONOURABLE JUDGE D. PATTERSON
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J.H.M. Patterson |
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Counsel for Accused Fraser River Pile and Dredge (GP) Inc. |
K.R. Beatch R.J. Cleary |
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R. Cuervo-Lorens M.J. Harmer |
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Prince Rupert, B.C. |
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Date of Judgment: |
August 21, 2020 |
[1] THE COURT: This is my ruling on the Vukelich hearing. I reserve the right to order a transcript and edit my ruling to add the case law I have referred to but not quoted, to make it grammatically correct, or to make it more readable, but the result and the substance of my decision will not change.
[2] The two applicants, Fraser River Pile and Dredge (GP) Inc. (which I will refer to as "FRPD"), and Stewart Bulk Terminals Ltd. (which I will refer to as "SBT"), are jointly charged on Stewart Court Information 32744-3-C with three counts under the Canadian Environmental Protection Act, 1999 (which I will refer to as "CEPA").
[3] The Federal Crown alleges that SBT contracted FRPD to carry out unlawfully dredging activities at or near Stewart, in northwest British Columbia. Accordingly, Count Number 1 alleges that the applicants did unlawfully dispose of dredged material contrary to s. 125(1) of the CEPA, thereby committing an offence in contravention of s. 272(1)(a) of the CEPA. Counts 2 and 3 allege that the applicants loaded dredged material for the purpose of disposal at sea, contrary to s. 124(1) of the CEPA, thereby committing an offence in contravention of s. 272(1)(a) of the CEPA. The disposal and loading of the dredged material is alleged to have occurred on and between February 14 to 21, 2015. The substantive trial in this matter is currently set for five weeks, beginning on October 19, 2020. I am the assigned trial judge.
[4] I note that the Charter Notice and the Written Submissions prepared and filed with the court by counsel for both applicants in this case were quite detailed, as was the Federal Crown's response. Oral submissions were likewise detailed and all counsel did a good job explaining their positions to the court. Counsel for the two applicants and counsel for the Public Prosecution Service of Canada are to be commended for their detailed analysis of the issues in the Charter notices, written submissions, and in their oral argument. Because Federal Crown is opposed to having a Charter voir dire, the applicants have applied for what is commonly referred to as a Vukelich Hearing to determine if they will be allowed a Charter voir dire.
COURT RELATED BACKGROUND
[5] Stewart Court Information 32744-3-C was created when the Information By Telecommunication That Produces A Writing was signed by the Informant on June 6, 2019. Stewart Court Information 32744-3-C replaced Stewart Court Information 32744-2-C, which was signed by the Informant on June 3, 2019, and that court information replaced 32744-1, which was signed by the Informant on May 28, 2019.
[6] On March 3, 2020, FRPD filed a Notice of Application for Production of Records from the Department of Fisheries and Oceans (otherwise known as "DFO"). Also on March 3, 2020, FRPD filed the 64‑page Affidavit of Arlene Payne (a legal administrative assistant with the law firm Alexander Holburn Beaudin + Lang LLP) in support of their Notice of Application for Production of Records from the DFO.
[7] On May 6, 2020, SBT filed a Notice of Application for Production of Records from the DFO.
[8] On May 15, 2020, SBT filed a Notice of Application to Exclude Evidence Pursuant to the Charter of Rights and Freedoms, seeking an Order excluding evidence pursuant to the common law and to ss. 7, 8, 9, 10(a), 10(b), 11(d), 24(1), and 24(2) of the Canadian Charter of Rights and Freedoms (otherwise known as the "Charter").
[9] Also on May 15, 2020, FRPD filed a Notice of Constitutional Application Re: Exclusion of Evidence of Fraser River Pile & Dredge (GP) Inc., seeking an order excluding evidence pursuant to s. 24(1) or s. 24(2) of the Charter, as a result of violations of its ss. 8 and 11(d) Charter rights.
[10] On May 27, 2020, I made a Consent Order for Redaction and Production of Records Held by the DFO, resulting in the elimination of what was going to be either a two-day Third Party Disclosure Hearing, as favoured by the applicants, or a two-day O'Connor Hearing, as favoured by the Federal Crown.
[11] On May 29, 2020, FRPD filed an Amended Notice of Constitutional Application Re: Exclusion of Evidence of Fraser River Pile & Dredge (GP) Inc., seeking an Order excluding evidence pursuant to either s. 24(1) or s. 24(2) of the Charter, as a result of violations of its s. 8 and 11(d) Charter rights.
[12] On July 30, 2020, FRPD filed their comprehensive Vukelich Written Submissions – Filed By Fraser River Pile & Dredge (GP) Inc.
[13] On July 30, 2020, SBT filed their comprehensive Written Submissions Of Stewart Bulk Terminals Ltd. On Application To Exclude Evidence.
[14] And on August 13, 2020, the Federal Crown filed their comprehensive Crown Submissions: Vukelich Hearing.
VUKELICH HEARINGS
[15] The term "Vukelich Hearing" originates from the decision of R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.), leave to appeal denied to the Supreme Court of Canada, [1996] S.C.C.A No. 461. At paragraph 26 in Vukelich, Chief Justice McEachern identified that not every applicant is entitled as of right to a voir dire and that a trial judge must control the course of the proceedings:
Based on these authorities, it does not follow that an applicant is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues. I reach that conclusion because it is clear from cases such as Grant and Garofoli that a warrant remains valid if there is enough left in the supporting affidavit to support the issuance of the warrant after all the impugned portions are deleted. In other words, the trial judge does not revisit the application for the warrant ab initio in the light of subsequent information, but rather considers whether, as stated in Garofoli at 1452, ". . . there continues to be any basis for the decision of the authorizing judge" to issue the warrant.
[16] Over the past 24 years, Vukelich Hearings have become a type of trial management tool used here in British Columbia to determine if a voir dire is necessary to determine the admissibility of evidence.
[17] Mr. Justice Blok described a Vukelich Hearing at paragraph 7 in R. v. Paltry, 2018 BCSC 591, as being " . . . a type of trial management process used to filter out applications that disclose no reasonable prospect of success."
[18] Ten years earlier, Mr. Justice Davies wrote in R. v. Tse, 2008 BCSC 867:
[19] Put more colloquially, the Vukelich hearing was intended to preclude embarkation upon "fishing expeditions" when the applicant could not reasonably demonstrate that there might be fish to be caught.
[20] In such cases, the Court must be vigilant in acting to ensure that such wasteful exercises are not allowed to unduly delay the appropriate and expeditious prosecution of criminal offences.
[21] On the other hand, the Vukelich hearing was never intended as a tool by which to prevent legitimate investigation of alleged Charter breaches when an appropriate foundation for that alleged breach can be demonstrated. It was also not, as has turned out to be the case in the various Vukelich hearings insisted upon by the Crown in the pre‑trial proceedings in this case, intended to be a protracted pre‑hearing examination of the minutiae of the accused’s application.
[19] In R. v. Russell, 2012 BCSC 1085, Madam Justice Dillon described the rational for Vukelich Hearings as this, beginning at paragraph 30:
[30] An applicant is not entitled to a voir dire as of right . . . The trial judge must control the course of the proceedings and embark upon a voir dire only when it will assist the proper trial of the real issues . . .
[31] Exercise of the discretion to embark upon a voir dire depends upon whether the party requesting the evidential hearing has shown a reasonable likelihood that the hearing can assist in the determination of the issues before the court . . . It has variably been described as establishing "some basis" on which to require a voir dire . . . lending an "air of reality" to a contention of unfairness . . . demonstrating a reasonable basis upon which a breach of the Charter could be found . . . and raising a realistic juridical issue . . . In Gaudaur at para. 79, Romilly J. described situations when the discretion might not be exercised as follows:
[79] . . . If the [applicant] fails to specify the grounds to the challenge, or fails to show a live issue known to law, or the grounds specified are insufficient to support a successful Charter challenge, then the court has the discretion to deny the [applicant] leave to hold a voir dire.
[20] In R. v. Cody, 2017 SCC 31 (CanLII), the Supreme Court of Canada taught, at paragraphs 38 and 39:
[38] In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily . . . And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” . . . This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.
[39] Trial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions, such as proceeding on a documentary record alone. This responsibility is shared with counsel.
[21] Finally, an important reminder concerning Vukelich Hearings was given by Mr. Justice Schultes in R. v. Gill, 2018 BCSC 661 at paragraph 24:
[24] One thing the court must be careful not to do when deciding a Vukelich hearing is to inadvertently decide the actual merits of the proposed application. The only question for me at this stage is whether there are facts alleged, either in the notice or counsel's submissions, that if found in the defence's favour [w]ould support one of the remedies being sought. If there are such facts, the application should proceed to the next stage of a full hearing.
PROCEDURE AT A VUKELICH HEARING
[22] Approximately 10 years ago, Madam Justice Gray set out a useful guide for the procedure to be used at a Vukelich Hearing in R. v. Armstrong, 2010 BCSC 1041, at paragraph 29:
• the trial judge should assume the truth of the facts the applicant seeks to prove to establish his or her entitlement to the constitutional remedy;
• the trial judge should consider whether those facts disclose a basis in law for the constitutional remedy on the grounds set out in the applicant's notice of constitutional question; and
• if the trial judge concludes that the applicant would not be entitled to a constitutional remedy on those grounds, even if he/she proved the facts alleged, the trial judge can exercise his or her discretion and decline to embark on an evidentiary hearing.
[23] More recently, my brother Judge Hewson, in R. v. Chapman and Honeyman, 2016 BCPC 275, noted the following regarding the procedural steps to be observed:
[11] A review of rulings following Vukelich hearings suggests that the following procedural steps should be observed:
1. The Vukelich application must be made before or at the [same] time when the evidence is tendered. Counsel may provide a copy of the Information to Obtain in question to the trial judge, in advance of the application.
2. The procedure should be flexible and should be adapted to the circumstances of the case.
3. The onus is on the [applicant] applying to have a voir dire declared.
4. The application should be determined upon the statements of counsel, if possible.
5. Counsel for the [applicant] should summarize the facts that the [applicant] is relying on in support of his or her submission that there has been a Charter breach.
6. The Court should assume for the purposes of the Vukelich application that the facts as alleged by counsel are true.
7. If the trial judge declines to declare a voir dire on the basis of the statements of counsel, counsel for the [applicant] must either choose to go further, or to accept the Court’s ruling, subject to his or her eventual right of appeal.
8. When counsel for the [applicant] chooses to go further, a more formal approach will be required. That may include the filing of affidavits or an undertaking to adduce evidence. In essence, there must be some factual basis supporting the application before the trial judge can declare a voir dire.
9. The [applicant] is not required to file an affidavit, as it may expose him or her to cross-examination.
10. Ultimately, if the statement of counsel or the evidence adduced on the Vukelich application do not disclose a basis on which the court could reasonably make the order sought, the application to declare a voir dire should be dismissed.
[24] Finally, as per Madame Justice Côté, writing for the Supreme Court of Canada majority in R. v. Jones, 2017 SCC 60, in the second sentence of paragraph 9:
I conclude that an [applicant] mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire.
FACTS (as per SBT and FRPD)
[25] SBT operates a bulk loading facility located at the head of the Portland Canal near Stewart, British Columbia. Daniel Soucie and Roland Soucie are the principal owners and operators of SBT. They are also both directors of SBT.
[26] SBT's facility includes a water lot where vessels must pass through to dock. The water lot must be periodically dredged to maintain a safe depth. Dredging can be a regulated activity. For instance, if material is being removed from the sea bottom, permits are sometimes required from Environment and Climate Change Canada (hereafter called "ECCC") for disposal at sea or from the British Columbia Ministry of Environment and Climate Change Strategy (otherwise known as "BC MOE") for disposal on land.
[27] Steve Graham was a consultant for SBT. In October 2013, approximately 16 months before the alleged offences in this case, he contacted ECCC to canvass options for disposing 4,500 m3 of dredging waste. The options explored included disposal at sea. This option was not in the end pursued.
[28] On December 16, 2014, Steve Graham obtained new permits from the BC MOE to deposit 3,500 m3 of waste on land. SBT hired FRPD to dredge the water. There was no written contract.
[29] The proposed work to be carried out by FRPD included dredging in the area of the 2013 dredge as well as dredging an additional section of the water lot. FRPD contracted with Wainwright Marine Services (“WMS”) to supply a barge to haul the dredge wasteland and a tugboat to tow it. FRPD was to apply on SBT's behalf for any federal permits that may be required. On December 17, 2014, FRPD submitted a "Request for Review" to the DFO seeking guidance as to whether "bed leveling" was permissible in the context of the planned maintenance dredging (bed leveling involves moving sediment from high to low sea bed spots).
[30] The work commenced on February 14, 2015, and continued until February 21, 2015.
[31] Between February 16 and 23, 2015, ECCC Enforcement Officer (“EO”) Deborah Portman received, either directly or through the BC MOE, three complaints from the Nisga'a Lisims Government (otherwise known as "NLG") regarding dredging.
[32] On February 19, 2015, a complaint was made alleging the following:
They are presently dredging at the Stewart Bulk Terminal at the end of their dock with a dredge with a clam bucket. The dredge sits on a barge. They are dredging the bottom and re dumping it back in the ocean a few meters away NOT on an awaiting barge. There are no containment booms and probably no silt curtains, we can't see any. They are stirring up the bottom when dredging with the clam bucket at the end of the barge then taking the clam bucket up but leaving the tip of the bucket in the water then turning to the side of the barge and re dumping it in the ocean a few meters away resulting in a lot of sediment and sludge floating around. We have been under the impression that they can't do that? On their wharf construction-Dredging plan it states…. Under water dredging done with clam buckets, load flat material barges. They have one flat barge but it is tied up away from the site and not being use [sic]. It also states…. The off loading and backfill with dredged materials performed with land equipment for civil works. They won't be unloading if they are dumping back in the ocean. It also states in their past conditions that there will be NO ocean dumping.
[33] On February 20, 2015, the complainant NLG provided a video recording of the alleged infraction to ECCC.
[34] On February 24, 2015, EO Portman and EO Normand Legare had a telephone conversation with Kerri Skelly of the BC MOE. Ms. Skelly requested copies of any pictures or samples seized from SBT facilities. EO Portman, however, did not commit to sharing the information as this was now an active investigation.
[35] Between February 16 and 25, 2015, EO Portman collected additional information and documentation regarding SBT. During this time, she learned that:
i. Steve Graham contacted ECCC in 2013 on behalf of SBT regarding options for disposing of approximately 4,500 m3 of dredged material;
ii. ECCC had no further communication with Mr. Graham;
iii. SBT had applied for a permit in 2014 to dispose of waste in the United States;
iv. SBT did not obtain ocean permits for the dredging at issue; and
v. SBT claimed that 3,000 m3 had been dredged and that the bed leveling had not been used.
[36] Accordingly, by February 25, 2015, ECCC had:
a. video evidence that bed leveling had been carried out; and
b. confirmation from SBT that it did not have the required permit.
[37] On February 25, 2015, EO Legare and EO Anne-Marie Bamford attended the SBT office in Stewart, British Columbia. They identified themselves as "enforcement officers" and advised that they were investigating the recent dredging. EO Legare and EO Bamford directed the Soucies to attend the SBT office and requested to interview them. The ECCC investigators interviewed the Soucies together, with both Soucies and both investigators present. The ECCC investigators did not provide any caution to the Soucies. The ECCC investigators did not advise the Soucies of the right to refuse to be interviewed. The ECCC investigators did not advise the Soucies that they were not under an obligation to provide the information sought. EO Legare and EO Bamford also told the Soucies that they were being interviewed as "witnesses." The Soucies will testify that they believed, based on their discussions with EO Legare and EO Bamford, that they were legally required to provide assistance to the ECCC investigators.
[38] During the February 25, 2015, interview, the Soucies identified FRPD and WMS and the respective roles FRPD and WMS played in the dredging project. The Soucies identified and provided contact information for Gary Fontaine, Superintendent at FRPD, and Crystal Hillier, Manager of WMS. The Soucies were then interrogated regarding their knowledge of regulations regarding disposal at sea, storage of waste on land and the dredging that occurred between February 14 and 21, 2015.
[39] The Soucies attempted to end the interview with EO Legare and EO Bamford on two or three separate occasions. The ECCC investigators refused to do so despite the Soucies' attempt to end the interview.
[40] The Soucies were never made aware of their right to refuse to respond to the ECCC investigators' questions. The Soucies did not have counsel present and they were not provided with an opportunity to seek legal advice.
[41] At the conclusion of the February 25, 2015, interview, the ECCC investigators provided the Soucies with two forms: (i) "Informed Consent To Enter Premises, Take Photographs and Collect Evidence"; (ii) "Informed Consent to Surrender Things" (collectively, I will refer to those as the "SBT Consents").
[42] The ECCC investigators did not explain the contents of the SBT Consents to the Soucies or that:
i. SBT and the Soucies were all targets of the investigation;
ii. the Soucies each had a right to refuse or withdraw their consents; nor
iii. ECCC investigators would be seizing samples for testing and other documentation.
Rather, the ECCC investigators simply presented and had the Soucies sign the SBT Consents without explanation.
[43] Daniel Soucie signed the SBT Consents on behalf of SBT. The ECCC investigators did not explain the contents of the SBT Consents and Daniel Soucie did not understand what he was signing. In fact, on the SBT Consent to Surrender, Daniel Soucie initialled two contradictory portions of the form, one which states, "I have been informed and understand that I am not under arrest or detention," and the other which stipulates that, "I have been informed that I'm under arrest or detention and that I may retain and instruct counsel."
[44] The Soucies and SBT were never informed of their respective rights nor the jeopardy they were facing.
[45] On February 26, 2015, based on the SBT Consents, the ECCC investigators conducted an on-site inspection of SBT and seized samples of the dredged waste from 2013 and 2015. They also photographed the site.
[46] As a result of the February 25, 2015, interviews and information provided, ECCC investigators met with and interviewed the following FRPD and WMS employees:
• Chrystal Hillier on March 23, 2015, she is a WMS Manager;
• Eric Thomas Richards on March 24, 2015, he is a WMS Lead Deckhand;
• Jay Francis Colley on March 24, 2015, he is a WMS Captain;
• Robert Bruce Cochrane on April 20, 2015, he is an FRPD Environmental Coordinator;
• Craig William Longmuir on April 21, 2015, he is an FRPD Construction Manager;
• Daniel Alyn McMorris on April 22, 2015, he is a FRPD Dredge Operator;
• Kevin John Hodgson on May 14, 2015, he was an FRPD Superintendent; and
• Gary Fontaine on May 17, 2016, he was an FRPD Senior Superintendent.
[47] On March 24, 2015, Crystal Hillier signed an "Informed Consent to Enter Premises, Take Photographs and Collect Evidence" (the "WMS Consents") and ECCC investigators seized the following items from WMS:
i. Ingenika Log Book, February 12 to February 19, 2015;
ii. Ingenika Log Book, February 20 to 24, 2015; and
iii. photographs labelled IMG-0005 through to IMG-0014 and dated March 24, 2015.
[48] On April 22, 2015, Tom Lively signed a consent on behalf of FRPD (the "FRPD Consent") similar to the SBT Consents. Mr. Lively specifically indicated that he did not understand "the nature of the conduct" to which he was consenting. Without further explanation, the ECCC investigators seized the following items from FRPD pursuant to the FRPD consent:
i. Application made to DFO by FRPD on behalf of SBT in respect of dredging activities performed in February 2015, and follow‑up email correspondence surrendered by FRPD;
ii. Daily safety talks summary performed in respect of dredging activities at SBT in February 2015;
iii. Logbook examples;
iv. Invoice from WMS to FRPD;
v. FRPD employee timesheets for February 2015;
vi. Registration information of the vessel used for sounding at SBT in February 2015;
vii. Crane logbook for weeks ending February 14 and 21, 2015, four GE VI;
viii. Pre and post dredge survey of the works location made in February 2015 at SBT;
ix. Contact information for FRPD crew members and Mr. Gary Fontaine;
x. USB stick containing Quincy program data;
xi. Organization chart for SBT dredging project;
xii. FRPD invoice and associated timesheets; and
xiii. Internal FRPD email dated February 16, 2015.
[49] At the conclusion of the investigation, the ECCC investigators prepared a Report to Crown Counsel. ECCC investigators made the following recommendation:
It is the recommendation of the Environmental Enforcement Directorate of Environment and Climate Change Canada the charges to be laid against Stewart Bulk Terminals Limited, Roland Lawrence Soucie, Jack Ellsworth, Daniel James Soucie (Directors of Stewart Bulk Terminals Limited) and Fraser River Pile & Dredge (GP) Inc. for alleged violations of sections 124 and 125 of the Canadian Environmental Protection Act 1999 (CEPA).
WHAT IS SOUGHT
[50] The applicants seek a Charter voir dire that the parties estimate will require approximately somewhere between six and 12 days of court time.
[51] At the voir dire, FRPD is wanting to seek orders excluding the following:
1. Statements and evidence obtained by ECCC investigators from the directors, Daniel James Soucie and Roland Soucie, as well as the various witnesses I have already named from FRPD and WMS.
2. All documents and information ECCC seized from SBT, related to SBT's facilities or SBT's activities, including all documents, records, data, and other things seized during the search conducted pursuant to the "SBT Consents."
3. All documents and information ECCC seized from FRPD, including all documents, records, data, and other things seized during the search conducted pursuant to the "FRPD Consent."
4. All documents and information ECCC seized from WMS, including all documents, records, data, information, and other things seized during the search conducted pursuant to the "WMS Consent."
5. All statements and evidence, including documents, data, information, letters, and media, seized by ECCC and/or the BC MOE after February 25, 2015, from Steve Graham and S. Graham Engineering and Geology, Inc. (“SGE”).
6. All samples collected, laboratory results obtained, photos taken, data collected, and images downloaded by ECCC relating to the acts or omissions said to constitute the offences alleged in Stewart Court Information 32744-3-C or being relied upon by Federal Crown counsel.
7. All documents, records, or information received by ECCC from BC MOE.
[52] At the voir dire, the SBT is wanting to seek orders excluding the same statements and evidence of the same individuals as FRPD, as well as the same information and evidence that FRPD is seeking to have excluded.
[53] Initially, in its Charter Notice, the SBT asserted breaches of its s. 7, 8, 9, 10(a), 10(b), and 11(d) Charter rights. FRPD asserted breaches of its s. 8 and 11(d) Charter rights. Both applicants sought the exclusion of evidence and statements pursuant to the common law or under ss. 24(1) and/or 24(2) of the Charter. Subsequently, in their Written Submissions and during oral argument, the applicants each asserted breaches of the s. 7, 9, 10(a), and 10(b) Charter rights of various individuals, as well as their own s. 8 and s. 11(d) Charter rights. An essential element of the argument put forward by the applicants is that ECCC investigators interviewed the Soucies and seized materials during a warrantless search from the SBT property. During the interview of the Soucies, the applicants say that ECCC investigators violated the Soucies' s. 7, 9, 10(a), and 10(b) Charter rights and that the alleged "consent" provided by the Soucies was insufficient to constitute a waiver. The applicants go on to argue that following the interviews of the Soucies, which led directly to the identification of FRPD and WMS, ECCC investigators interviewed employees and seized documentation from FRPD and WMS. The applicants argue interviews and evidence collected after the ECCC investigators' interviews of the Soucies is “derivative evidence” and should be excluded.
[54] The Federal Crown is opposed to having a Charter voir dire, with the exception regarding the s. 8 rights of SBT related to its own consent search. As per paragraphs 2 and 3 of their Crown Submission: Vukelich Hearing:
2. The numerous challenges proposed by the applicants are the very type that Vukelich hearings are designed to screen out. The applicants assert breaches of the rights of third parties that they do not have standing to challenge. They allege breaches of rights that corporations do not enjoy. They assert s. 8 violations over matters in which they do not enjoy a reasonable expectation of privacy, including over witness statements – a concept unknown in law. The applicants seek the exclusion of evidence unconnected to the breaches alleged. They advance, without basis, claims of trial unfairness that would render illusory the standing requirements under the Charter.
3. The Crown's position is that these applications are without merit and should be dismissed summarily, with the exception of SBT's challenge to its own consent search. For the remaining challenges proposed, the applicants cannot claim Charter relief for infringements of the rights of third parties, for infringements of rights they do not enjoy as corporations, and for which they otherwise do not have standing to raise. Embarking on the voir dires contemplated in the applicants' notices would be a time-consuming and resource-intensive exercise for no productive purpose.
DISCUSSION AND ANALYSIS OF ISSUES
[55] The applicants both argue that their s. 8 and 11(d) rights were violated. The applicants remind the court that at a Vukelich Hearing they do not have to show the court that they will prevail on the voir dire; rather, they submit that they must only show that the arguments advanced are not without merit. A low hurdle to cross. They remind the court that the voir dire will involve the calling of evidence with full examination in chief and cross‑examination and that it is only upon the receipt of a full record, followed by legal argument and analysis, that the matters can be adjudged adequately.
Corporations and the law
[56] Having heard from counsel and having read the authorities provided, I acknowledge that corporations do not enjoy the same rights as human beings under the Charter. In particular, with regard to s. 7, 9, 10(a), and 10(b) of the Charter, the courts have consistently held that corporations do not enjoy the same rights as human beings.
Section 7
[57] I am of the opinion that corporations do not have a constitutional right to life, liberty, and security of the person under s. 7 of the Charter, including the corollary right to silence. Why? Because s. 7 was intended to confer protection on a "singularly human level" and only humans enjoy this right, as per the majority in Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927 at pages 1002-1004. In the result, I am of the opinion that the applicants do not have or enjoy s. 7 rights.
Sections 9, 10(a), and 10(b)
[58] Based upon the teachings of the Supreme Court of Canada in Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC), [1998] 3 S.C.R. 157, I am of the further opinion that corporations do not have or enjoy s. 9, 10(a), or 10(b) Charter rights. As pointed out by the Federal Crown, corporations are not alive and cannot go to jail. They cannot suffer physical or psychological stress like human beings. Corporations cannot be arrested or detained. Therefore, logic dictates that corporations cannot invoke the right not to be arbitrarily detained or imprisoned under s. 9, or the rights on arrest on detention under s. 10 of the Charter. At paragraph 36 of Canadian Egg Marketing Agency v. Richardson decision, we are taught that :
[36] As a general rule, a provision of the Charter may be invoked only by those who enjoy its protection. Section 7 of the Charter, for example, extends protection only to natural persons . . . Similarly, corporations cannot invoke those provisions of the Charter that provide protection following arrest and detention because corporations cannot be arrested and detained.
[59] In the result, I am of the opinion that the applicants do not have or enjoy s. 9, 10(a), or 10(b) Charter rights.
Section 8
[60] It is conceded by Federal Crown counsel that corporations do enjoy the protection of s. 8 of the Charter. Accordingly, keeping in mind that the only question for me at this stage is whether there are facts alleged, either in the written materials or through counsel's submissions, that if found in favour of the applicants could support one of the remedies being sought, I ask myself two questions:
1. Has either one or both of the applicants laid an appropriate foundation for the alleged breach or breaches of their s. 8 right to be secure against unreasonable search or seizure? and
2. If yes, is one or more of the remedies sought available to them?
[61] In other words, to paraphrase Justice Davies, would the requested s. 8 voir dire be merely a "fishing expedition" in which the applicant could not reasonably demonstrate that there might be fish to be caught?
[62] To bring an application under the Charter for the alleged violation of an s. 8 right, the applicants must establish standing. SBT and FRPD both claim standing under the Charter. Both SBT and FRPD seek a remedy under s. 24 of the Charter.
[63] Section 24 of the Charter provides:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[64] Reading the plain words of s. 24 of the Charter together, it appears that standing requires that SBT and FRPD demonstrate that their own rights were breached, not those of a third party. In other words, on reading the words of s. 24, it appears that an infringement of an applicant's personal right is a prerequisite to advancing a claim under the Charter.
[65] The Federal Crown has urged upon me to find that in any allegation involving a Charter breach, the first question to be answered is whether a personal right of the applicant is engaged. According to Federal Crown, it is only when this first question is resolved that it is necessary to move to the next question of whether a violation of this right has occurred. Finally, the Federal Crown says that the question of whether there was any violation of the Charter need not be considered if the applicant cannot establish that their own rights were engaged, citing R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at paragraphs 33 through to 56.
[66] The Federal Crown also says that the law is settled and the language of s. 24 is clear. That is: only those whose Charter rights have been breached may obtain a remedy. In the absence of any violation of the applicant's own rights, it is not open to an applicant to apply for a remedy under s. 24. Federal Crown therefore urges me to find that it is not enough for the applicants to suggest mere unfairness or illegality in the conduct of the state agents involved in the obtaining of the evidence against them. Rather, the conduct must amount to a breach of the applicant's personal rights before s. 24 is engaged. In the result, Federal Crown says that this means that only a person or corporation whose own rights or freedoms have been infringed or denied has standing to apply for a Charter remedy.
[67] In the context of s. 8 of the Charter, a person is granted standing to challenge a search and seizure when they can demonstrate they have a reasonable expectation of privacy. This reflects the meaning of a "search," an intrusion by a state actor upon a person's reasonable expectation of privacy. In Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at 159‑160, Mr. Justice Dickson wrote:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
[Emphasis in original]
[68] So on these points I agree with the Federal Crown regarding standing:
1. It is the applicant's onus to establish a reasonable expectation of privacy.
2. The determination of a reasonable expectation of privacy happens before entering into a s. 8 hearing, because if there is no privacy interest present, there is no right to enter into the hearing.
[69] Thus, if the applicants have no reasonable expectation of privacy, they cannot have standing to enter into an s. 8 voir dire.
[70] The Federal Crown takes the position that the prosecution of the applicants in this case is an environmental prosecution, regulatory in nature, and not a criminal offence. In other words, the offences charged are all strict liability offences. Mr. Justice La Forest's comments at pages 505 to 507 of Thomson Newspapers Ltd. v. Canada, 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, while considering s. 17 of the Combines Investigation Act, are supportive of the Federal Crown's position. Five years after deciding Thomson Newspapers Ltd., the Supreme Court of Canada again provided guidance in respect to the privacy interests of corporations versus human beings in the regulatory offence, British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3 at paragraphs 51 to 64.
[71] The applicants argue that this prosecution does not involve strict liability offences, rather they are charged with mens rea offences. The applicants say that the purpose of the ECCC investigators in gathering the various witness statements and evidence against SBT and FRPD that they did gather, was for an investigation to determine criminal or quasi-criminal liability. I prefer the terminology "penal consequences" to criminal or quasi-criminal in the present case, as the applicants are charged in all three counts with committing offences in contravention of s. 272(1)(a) of the CEPA. As such, the applicants, as corporations, do not face jail terms upon conviction and they fall into the category of either "persons" or "small revenue corporations" for purposes of sentencing in the CEPA (see R. v. Big River First Nation, 2019 SKCA 117). If convicted at trial, the applicants face fines as set out in one or more of s. 272(3), 272(4), 272.3, and 273 of the CEPA.
[72] Based upon the case law that I have referred to and the submissions of counsel, I accept that corporations have a lower expectation of privacy in the context of regulatory offences. Nevertheless, a lower expectation of privacy can still, in my opinion, give rise to the applicants having standing. As this is a Vukelich Hearing to determine if we should have a s. 8 Charter voir dire, not the actual s. 8 Charter voir dire itself, I am not deciding the actual merits of the proposed voir dire. Rather, I need to remind myself of the teachings of Mr. Justice Josephson in R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at paragraph 4:
[4] The threshold for embarking on an evidentiary hearing into an alleged Charter breach is low. As set out in R. v. Vukelich . . . the applicant need only demonstrate a reasonable basis upon which the Court could find a breach of the Charter.
[73] I accept what has been urged upon me by counsel for the applicants that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered in assessing the totality of the circumstances according to Edwards, which I find do apply to corporations, albeit with some allowances that as I will address below, may include, but are not restricted to, the following:
i. presence at the time of the search;
ii. possession or control of the property or place searched;
iii. ownership of the property or place;
iv. historical use of the property or item;
v. the ability to regulate access, including the right to admit or exclude others from the place;
vi. the existence of a subjective expectation of privacy; and
vii. the objective reasonableness of the expectation.
[74] If I find that the applicants have established a reasonable expectation of privacy, given their expectation of privacy will be lower than the expectation of privacy enjoyed by human beings, then, and only then, will I move to consider if they have a possible remedy available to them, such that the inquiry must proceed to a s. 8 voir dire.
[75] I agree with Federal Crown counsel that the applicants' s. 8 arguments fall into two broad general categories: (1) the taking of statements by ECCC investigators from various witnesses, including the applicants' own employees and the directors of SBT; and (2) the manner in which the ECCC investigators obtained evidence by consent from SBT, FRPD, and WMS.
1. The taking of statements by ECCC investigators from various witnesses
[76] I am in agreement with the Federal Crown that as a general proposition, there is no merit to the applicants' assertions that there is a reasonable expectation of privacy in what witnesses say. A similar argument was advanced and rejected by the Prince Edward Island Court of Appeal in R. v. Molyneaux, 2020 PECA 2. Although not binding on me, it is instructive and persuasive. As set out at paragraphs 35, 43 to 46 and 56 through 57 of the decision:
[35] The very thought that police would require judicial authorization before interviewing witnesses because that witness might provide information which could in turn lead to the police obtaining personal information is counter-intuitive if not absurd. In drug cases, for example, informants are [crucial]. Informants provide the police with very personal and private information about their targets: where they live, details of conversations overheard, phone numbers, with whom they associate, their habits, their plans, and other very personal information. Police do not obtain prior judicial authorization before speaking to informants. The Charter protection for individuals arises when the police act on the information received and conduct a search and seizure. A search and seizure requires prior judicial authorization, speaking with informants does not. Nonetheless Molyneaux urges us to “read the cases” and we will see matters as he does.
. . .
[43] The investigative technique used by the police was the usual one; speaking to a potential witness. Having heard from one source, CFS, that an individual may be witness to a crime or may have information relevant to a crime, the police sought to interview her. It was, in fact, their duty to investigate the matter. K. was free to speak to the police or to remain silent. Society’s conception of the proper relationship between the investigative branches of the state and the individual surely must allow the police to speak to a witness without prior judicial authorization.
[44] I do not believe that the subject matter of the "search" was Molyneaux's cell phone or the contents thereof. The police were seeking information that might reveal whether or not a crime occurred, and if so, whether or not they should pursue further investigation. The subject of the search was K.’s memory of what she saw the morning of December 31, 2017.
[45] None of the case law cited by Molyneaux deals with the situation that was before the trial judge. None of those cases deal with the admissibility of what the witness told the police. They all deal with whether or not the subsequent search and seizure was Charter compliant, and if not, whether the evidence obtained should be excluded under s. 24(2). In this case the results of the search were not tendered and were therefore effectively excluded. The question is the admissibility of K.’s viva voce evidence which is the same information she had given the police.
[46] Had Constable Schnarr used K.'s statement in an Information to Obtain and obtained a search warrant, there would have been no breach. The breach in this case was not the investigative technique of speaking to a witness; it was in failing to obtain a search warrant after speaking to the witness. I agree with the Crown that K.’s statement to the police was completely independent of any Charter breach. It does not flow from the breach as the breach happened after the statement. Its only connection to the breach is that police did not properly use the information she provided to obtain a warrant before seizing and searching Molyneaux’s phone.
. . .
[56] It is clear to me that the subject matter of this search was what K. saw and her memory thereof. In my view Molyneaux did not have a subjective expectation of privacy, and if he did it was clearly unreasonable.
[57] On the facts and circumstances of this case and applying a normative approach, I believe that the proper relationship between the police and the individual permits the police to interview a potential witness without prior judicial authorization. I conclude that Molyneaux did not have a reasonable expectation of privacy in the subject matter of the police interview. The subject matter of the police interview was what K. saw and her recollection of what she saw. A person has no reasonable expectation that an ex-girlfriend/boyfriend/spouse would keep private what they saw or heard.
[77] Nevertheless, as pointed out by counsel for the applicants in the present case, in light of Marakah, 2017 SCC 50 – in which I note that Mr. Justice Moldaver for the dissent argued that from a policy standpoint, granting Marakah standing in the circumstances vastly expanded the scope of persons who can bring a s. 8 challenge (at least as it relates to electronic communications) – the applicants claim an informational privacy interest in the statements made by the various people interviewed by the ECCC. Relying on Marakah, counsel for the applicants have urged me to find that because of the nature of the relationship of the witnesses to the applicants and the nature of the relationships between SBT, FRPD, and WMS, there is, for purposes of s. 8 of the Charter, a privacy interest that belongs to the applicants in the statements of the witnesses. What makes their argument more compelling, the applicants say, is that:
i. the ECCC was conducting an investigation, not an inspection; and
ii. the manner in which the ECCC investigators dealt with the various witnesses was inquisitional and adversarial.
[78] In determining that there are exceptions to the general proposition that there is no reasonable expectation of privacy in what witnesses say and that the questioning of employees can violate a corporation's s. 8 Charter right, the applicants rely on R. v. Inco, 2001 CanLII 8548. In Inco, an Ontario Ministry of the Environment Officer entered onto Inco property and asserted that he had statutory power to compel Inco employees to submit to questioning and produce documents and other materials. The Inco employees complied and the evidence was subsequently used in the prosecution of Inco. Inco contended in court that the Ontario Ministry of the Environment Officer had no statutory authority to compel Inco employees to submit to questioning and to produce documents and their materials. According to Inco, when the Ontario Ministry of the Environment Officer engaged in this investigation, he already had reasonable grounds to believe that an offence had been committed and he thus improperly used the inspection power under the relevant statute to build a case for prosecution. Relevant to the issues raised by the applicants at this Vukelich Hearing are paragraphs 39 to 43:
[39] Inco's claim for a stay is based not only on the alleged infringement of its s. 8 rights, but also on the alleged infringement of the employees' s. 8 rights. This claim under s. 8 need not be addressed as Inco has standing to assert its own s. 8 claim, which will need to be addressed at a new trial in the manner outlined above.
[40] Inco also requests a stay of the charges based on the alleged violation of the employees' rights under ss. 7, 9, and 10(b) of the Charter. Inco asserts that it has standing to raise the constitutionality of regulatory measures used against it, even if the rights invoked belong to natural persons. It is well accepted that corporations cannot claim the protection of s. 7 of the Charter: see Irwin Toy Ltd. v. Quebec . . . and Thomson Newspapers . . . Nor can corporations invoke ss. 9 or 10(b) of the Charter, because corporations cannot be arrested or detained: see Canadian Egg Marketing Agency v. Richardson . . .
[41] Inco relies on Canadian Egg Marketing Agency, supra, in support of its argument that it has standing to advance the Charter claims of its employees. In that decision, the Supreme Court of Canada explained that a court has residuary discretion to entertain Charter arguments from parties that would not normally have standing where the question involved is one of public importance. The Supreme Court [has] established that a corporate accused charged with an offence has standing to challenge the constitutionality of the legislation giving rise to the proceedings, as does a corporate defendant in civil proceedings instigated by the state under a regulatory regime.
[42] In my view, Inco's Charter claims are not raised out of public interest, nor do they constitute a matter of public importance. The claims arise in the context of a legislative scheme that has subsequently been amended and their claims are focused on the conduct of an individual investigator whom they claim overstepped his lawful authority in the circumstances of this particular case. Furthermore, Inco is not attacking the constitutionality of the OWRA and, in fact, Inco acknowledges that the type of regulatory powers at issue have been upheld by the Supreme Court in R. v. McKinlay Transport Ltd. . . . and R. v. Fitzpatrick . . . and are not impugned in this appeal.
[43] Accordingly, Inco lacks standing to advance a claim for relief based on the alleged violation of its employees' Charter rights. The only basis for its abuse of process argument is s. 8 of the Charter and the associated issue whether the IEB Officer was acting beyond his statutory authority when he entered Inco's premises.
[79] So in light of Inco, unless the applicants can show the following:
1. the ECCC was engaged in an investigation, as opposed to an inspection, at all relevant times;
2. the consent of the Soucies was insufficient to constitute a waiver;
3. the Soucies were detained and compelled to provide private corporate information to the state without lawful authority;
4. the search of the SBT's property was warrantless and not authorized by statute; and
5. the various witness statements and the items seized from FRPD and WMS is derivative evidence illegally received by ECCC;
it is difficult for me to see how the applicants will be able to demonstrate a reasonable expectation of privacy in the items seized and the statements given by their own directors/witnesses, never mind the items seized and statements from employees of their co-applicant, WMS, Steve Graham, SGE, or the BC MOE.
[80] Furthermore, based upon the case law provided and the argument of counsel, I find it difficult to accept the applicants' proposition that the various witnesses in this case are not compellable and their statements not admissible against the applicants, unless the applicants can show that the same five factors I set out above apply. But having said that, I need to guard against "prejudging" the outcome of an s. 8 voir dire, as now is not the time, unless I find that the applicants have not met the low standard required of them to proceed to a s. 8 voir dire.
2. Consent Searches
[81] I agree with counsel for the applicants that valid, informed consent requires an understanding and appreciation of the rights being waived and the consequences flowing from such waiver. Based upon the materials filed and the submissions of counsel, I am satisfied that there is a question to be answered regarding the validity of the consent given by the various witnesses in the present case. The issue for me is what use do I make of the question regarding the validity of the consent given by the various witnesses in the present case at a Vukelich Hearing and is there a causal connection between the alleged lack of consent and a violation of the applicants' s. 8 rights? The applicants say that there is.
Standing
Has either one or both of the applicants laid an appropriate foundation for the alleged breach or breaches of their s. 8 right to be secure against unreasonable search or seizure?
[82] In answer to this question I am assuming for purposes of this Vukelich Hearing the truth of the facts the applicants seek to prove, as I am required to do.
[83] I then turn to determining whether the applicants could have a reasonable expectation of privacy in the witness statements and evidence attained by ECCC such as to give them standing, by considering and assessing the totality of the circumstances, as I am instructed to do in Edwards and in Marakah at paragraph 11.
[84] To me, when considering and assessing the totality of the circumstances for purposes of the Vukelich Hearing -- whether using the Edwards test or the Marakah test – and accepting the facts as set out by the applicants, it appears to me that the applicants have met the low threshold for standing to move on to a voir dire.
Using the Edwards Test
[85] In considering the totality of the circumstances, and accepting for purposes of the Vukelich Hearing the facts as alleged by the applicants, the answers to the seven "lines of inquiry" set out in the Edwards Test are difficult to determine due to the unique facts as alleged by the applicants and the fact that we are dealing with applicants that are corporations, not human beings. Nevertheless, a simple response in keeping with the facts as set out by the applicants could very well be:
1. Presence at the time of the search: Yes for SBT as it relates to the Soucie interview and the search and seizure of SBT property. Yes for FRPD as it relates to the physical property seized from FRPD and the interviews of FRPD employees, except in relation to Gary Fontaine, who was interviewed after his retirement from FRPD.
2. Possession or control of the property or place searched: Yes for SBT as it relates to the Soucie interview and the search and seizure of SBT property. Yes for FRPD as it relates to the physical property seized from FRPD and the employees of FRPD, except for in relation to Gary Fontaine, who was interviewed after his retirement from FRPD.
3. Ownership of the property or place: As it relates to the physical property of SBT and the intellectual property contained in the minds of its directors, yes for SBT. As it relates to the physical property and the intellectual property and information contained in the minds of its employees, yes for FRPD.
4. Historical use of the property or item: As it relates to the physical property of SBT, yes for SBT. As it relates to the physical property of FRPD, yes for FRPD.
5. The ability to regulate access, including the right to admit or exclude others from the place: As it relates to the physical property of SBT, yes for SBT. Given the nature of their fiduciary responsibilities to SBT, that is: the duty of loyalty and the duty of care they owe, also yes to the intellectual property contained in the minds of the Soucies as directors of SBT. As it relates to the physical property of FRPD, yes to FRPD. Given the nature of the contractual responsibilities employees may have to their employer, also yes to the intellectual property contained in the minds of the employees of FRPD. Given the nature of the contractual relationships between SBT, FRPD, WMS, Steve Graham, and SGE, including privacy expectations, contractual obligations that regulate what can be done with regard to entry onto the SBT and FRPD physical properties, as well as access to the intellectual property contained in each of SBT, FRPD, WMS, Steve Graham, and SGE's employees' minds and interrelated with the other parties, yes.
6. The existence of a subjective expectation of privacy: No, but I will get back to that in a moment when I go through the Marakah Test.
7. The objective reasonableness of the expectation: Yes, and again I will go through that as I go through the Marakah Test.
Using the Marakah Test
[86] In considering the totality of the circumstances, and accepting for purposes of the Vukelich Hearing the facts as alleged by the applicants, the answers to the four "lines of inquiry" set out in the Marakah Test are:
1. What was the subject matter of the alleged search?
[87] The subject matter of the alleged search was the information not in the public domain as set out in Appendix "A" of SBT's Written Submissions Of Stewart Bulk Terminals Ltd. On Application To Exclude Evidence. Another way of expressing it is that the subject matter of the searches and seizures by ECCC investigators was in the possession and control of the applicants or parties they had contractual relationships with. The statements were provided by directors of SBT and employees of FRPD and WMS, with the exception of Steve Graham.
2. Did the claimant have a direct interest in the subject matter?
[88] The interview by ECCC investigators of the Soucies led to the ECCC's pursuit of FRPD and WMS. The subsequent interviews of the various employees of FRPD and WMS may not have happened but for the interviews of the Soucies. The same applies to the seizures of the various items from SBT, FRPD, and WMS. Materials from Steve Graham and SGE were seized as part of an investigation of SBT. But for the interviews of the Soucies, ECCC may have never acquired the physical evidence that it did.
[89] SBT has a direct interest in the statements of the Soucies (as directors of SBT), as well as all documents, photographs, and samples seized from SBT. Given their business relationships with FRPD and WMS, SBT has a direct interest in the other witness statements and items as set out in Appendix "A" of SBT's Written Submissions Of Stewart Bulk Terminals Ltd. On Application To Exclude Evidence.
[90] FRPD has a direct interest in the documents and information seized from them, as well as from the statements of their employees Robert Cochrane, Craig Longmuir, Daniel McMorris, Kevin Hodgson, and Gary Fontaine. Given its business relationship with SBT and WMS, FRPD has a direct interest in the other witness statements and items set out in Appendix "A" of SBT's Written Submissions Of Stewart Bulk Terminals Ltd. On Application To Exclude Evidence.
3. Did the claimant have a subjective expectation of privacy in the subject matter?
[91] I agree with counsel for SBT that corporations do not have subjective expectations. Nevertheless, the lack of a subjective expectation is not a bar to having a reasonable expectation of privacy. I agree with the applicants that Jones is instructive in this regard:
[19] Instead, I conclude that Mr. Jones should have been permitted to rely on the Crown’s theory that he authored the Text Messages for the purpose of establishing his subjective expectation of privacy in the subject matter of the search. As I explain below, this result coheres with the relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self-incrimination.
[20] To begin, the subjective expectation requirement has never been “a high hurdle” . . . And for good reason. Overemphasizing the presence or absence of a subjective expectation of privacy cannot be reconciled with the normative nature of the s. 8 inquiry. As Justice Binnie explained in Tessling, at para. 42:
The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society. . . . It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard. [Underlining added.]
[92] SBT has a territorial privacy interest in its property and it is not hard to imagine an informational privacy interest in the corporate information its directors possess, including financial and contractual information. The non-consensual statements of the Soucies (as directors of SBT) to ECCC investigators, as well as all documents, photographs, and samples seized from SBT, give rise to an expectation of privacy. Given their business relationships with FRPD and WMS, it is not a huge leap to conclude that SBT has an expectation of privacy in the other witness statements and items set out in Appendix "A" of SBT's Written Submissions Of Stewart Bulk Terminals Ltd. On Application To Exclude Evidence.
[93] Accepting that FRPD likewise has a territorial privacy interest in its property and an informational privacy interest in the corporate information that its employees possess, including financial and contractual information, it is again not a huge leap to conclude that FRPD has an expectation of privacy in the documents and information seized from it by the ECCC investigators, as well as the statements of its employees. Given its business relationships with SBT and WMS, FRPD would naturally expect its business partners to keep their information private, resulting in an expectation of privacy in the other witness statements and the items set out in Appendix "A" of SBT's Written Submissions Of Stewart Bulk Terminals Ltd. On Application To Exclude Evidence.
4. If so, was the claimant's subjective expectation of privacy objectively reasonable?
[94] Viewed through the eyes of a reasonable person, fully informed of: (i) current Charter case law; (ii) the manner in which ECCC acquired the evidence it did (according to the facts as alleged by the applicants); and (iii) the business relationships entered into between SBT, FRPD, WMS, Steve Graham, and SGE, the applicants' respective lower expectations of privacy could be seen as objectively reasonable. Why? Because the interview of the Soucies led to the ECCC's pursuit of FRPD and WMS. The subsequent interviews of the various employees of FRPD and WMS may not have happened but for the interviews of the Soucies. The same applies to the seizures of the various items from SBT, FRPD, and WMS. But for the interviews of the Soucies, ECCC may have never acquired the physical and viva voce evidence that it did. Especially if all of the collecting occurred in the context of a warrantless investigation, as opposed to an s. 218 CEPA inspection. They are inter-related.
[95] As such, both applicants have met the low threshold of the Vukelich Hearing required for standing to argue that their s. 8 Charter right to be secure against unreasonable search or seizure has been violated.
5. If yes, is one of the remedies sought available to them?
[96] Having determined that the applicants have standing to argue that their s. 8 Charter right to be secure against unreasonable search or seizure was violated does not end the matter. I now have to determine if one of the remedies the applicants' seek is actually available to them. Another way of looking at it is that the standing to allege an s. 8 rights violation is merely the opportunity to argue one's case. It does not follow that the accused's argument will succeed or that the various witness statements will be excluded or the other evidence found to violate s. 8 of the Charter. Accordingly, at a Vukelich Hearing, if there is no likelihood of success for the applicants, then I can decline allowing the matter to proceed to an s. 8 voir dire.
[97] Although the applicants' argument is novel, in light of Marakah and Inco, I believe that a constitutional remedy under s. 24(2) of the Charter may be available to the applicants if they can convince this court of the factual and legal underpinnings of their respective s. 8 arguments. As observed by Mr. Justice Fitch (as he then was) midway through paragraph 44 in R. v. MacDonald, 2013 BCSC 314:
. . . I accept, of course, that trial judges must be vigilant in ensuring that criminal proceedings are kept within reasonable scope and that unmeritorious arguments that are wasteful of public resources are filtered out. But it must also be recognized that the contours of constitutional rights are settled through the litigation of emerging, unresolved and contentious issues. This process starts in the trial courts. In the result, some considerable care must be taken not to use Vukelich to stifle novel, but unsettled and important points of law.
[98] This may be especially true when I take into consideration the facts as set out by the applicants, which include the ECCC investigators conducting an investigation into the applicants as opposed to an s. 218 CEPA inspection. As such, the decision in Potash v. Comité paritaire de l'industrie de la chemise, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406 may very well be 100 percent on point, since in situations where an inspector under a regulatory regime possesses reasonable and probable grounds to believe that an offence has been committed, the Hunter v. Southam requirements will need to be met. The result being that if an ECCC investigator has reasonable grounds to believe that an environmental offence has been committed, as the investigators in the present case did according to the applicants, then the investigators may only conduct a warrantless search in exigent circumstances: see s. 220(4) of CEPA. Absent exigent circumstances, where an investigator has reasonable grounds to believe that an offence has been committed, he or she should resort to an s. 220(1) CEPA warrant. While it might be hard to see how one gets a warrant for the intellectual property contained in the mind of a company director or employee, certainly:
1. a s. 220(1) CEPA warrant could have been applied for in regard to all the physical evidence that was seized from the applicants, WMS, Steve Graham, and SGE;
2. an informed, valid consent could have been sought from the various persons interviewed; and
3. s. 227 of the CEPA may have been available to the investigators if they had a valid warrant.
[99] In the result, I am exercising my discretion and I allow both applicants to enter into a s. 8 voir dire alleging violations of their right to be secure against unreasonable search and seizure.
Section 11(d)
[100] Section 11(d) of the Charter guarantees any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The applicants argue that they are entitled to have an s. 11(d) Charter voir dire because the manner that ECCC conducted the investigation into SBT and FRPD was so egregious that it would offend society's sense of fair play and decency, such that the ECCC's conduct amounts to an abuse of process and/or will undermine the fairness of the trial.
[101] The applicants are of the view that:
a. The actions of the ECCC investigators irreparably harmed their right to a fair trial.
b. The conduct of the ECCC investigators was so offensive to societal notions of fair play and decency that proceeding with a trial would be harmful to the integrity of the justice system.
c. All the evidence that was obtained by the ECCC investigators during their visits to the applicants' sites or from interviews of any of the corporate witnesses, including their employees, should be excluded. This would include evidence that was gathered during the investigations and viva voce evidence of witnesses who were discovered following the impugned interrogation of SBT directors Daniel Soucie and Roland Soucie by the ECCC investigators.
d. The exclusion of witness statements as a remedy may be appropriate because, but for the non-Charter compliant interview of SBT directors Daniel Soucie and Roland Soucie by the ECCC investigators, the ECCC would not have known of the existence of FRPD and WMS.
e. Abuse of process has been subsumed under s. 7 of the Charter and s. 7 does not apply to corporations.
f. Since s. 7 of the Charter is not available to them, then either a stay of proceedings or the exclusion of evidence can occur under section 11(d) of the Charter.
g. The court is able to exclude evidence and witness testimony under s. 24(1) of the Charter for an abuse of process or as a breach of 11(d) of the Charter.
[102] While the applicants are trying to use a novel approach to s. 11(d) of the Charter to get around the hurdle of not being able to allege violations of their own non-existent s. 7, 9, 10(a), and 10(b) rights, as noted earlier, in the cautionary teachings of Justice Fitch (as he then was) in MacDonald, is instructive in that " . . . some considerable care must be taken not to use Vukelich to stifle novel, but unsettled and important points of law." Federal Crown has done a thorough job of explaining to this court why, in this particular case, they say there is no basis for the suggestion that the ECCC investigators deliberately breached the rights of third parties to gather evidence against the applicants in order to circumvent the applicants' rights. Rather, the Federal Crown argues that the ECCC investigated these regulatory offences using simple methods: they spoke to witnesses and asked for evidence which was provided by voluntary consent. The Federal Crown says that Justice Moldaver's observation in Marakah at paragraph 195 is directly on point:
[195] In this regard, I believe that trial fairness concerns under ss. 7 and 11(d) of the Charter would rarely, if ever, be engaged in cases where evidence is voluntarily provided by a witness in response to an inquiry by the police. To avoid the practical concerns canvassed earlier in paras. 182-84 of these reasons, I wish to be clear that ss. 7 and 11(d) do not provide a vehicle for an accused person to litigate the validity of a witness's consent to a search in a context where the witness is cooperating with a police investigation. In such circumstances, the prospect of admitting evidence without scrutiny for compliance with s. 8 falls well short of compromising trial fairness.
[103] But in my opinion, Federal Crown is making their argument that the applicants cannot show a violation of their s. 11(d) rights or argue that a stay of proceedings is warranted based on Federal Crown's own versions of what they believe the facts will be, as opposed to the facts being alleged by the applicants here at this Vukelich Hearing. It may be that during an s. 11(d) voir dire I find that the facts are not as alleged by the applicants. But as set out previously, for purposes of the Vukelich Hearing, I must and do accept the facts as alleged by the applicants. So while I may ultimately find an absence of a reasonable basis for the applicants' argument of trial unfairness or abuse of process, the applicants are not, in my view, trying to go through the back door to get what they are unable to obtain through the front door. On this point, I take instruction from Justice La Forest in R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562:
22 I shall, however, attempt to put more flesh on this approach because the argument was strongly advanced that since there was no breach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under s. 24(2) of the Charter, there was no Charter based jurisdiction to exclude evidence. The difficulty with this contention is that it fails to appreciate the full nature of a fair trial. As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it does not operate until there is a Charter breach. What we are concerned with here is not the remedy for a breach but with the manner in which a trial must be conducted if it is to be fair.
23 The law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair, but the general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules. In R. v. Corbett . . . a majority of this Court made it clear that a judge has a discretion to exclude evidence that would, if admitted, undermine a fair trial . . . Similarly, Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 401, conclude that "if the admission of certain evidence would adversely affect the fairness of an accused's trial, the evidence ought to be excluded" (emphasis added). In Thomson Newspapers, supra, I attempted to explain that this approach is a necessary adjunct to a fair trial as guaranteed by s. 11(d) of the Charter in the following passage, at p. 559:
. . . there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge.
I went on to further explain, as I had in Corbett, supra, that the common law principle had now been constitutionalized by the Charter's guarantee of a fair trial under s. 11(d) of the Charter. At page 560, I continued:
The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications. The right of an accused to a fair [trial] is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of the principles of fundamental justice . . .
24 The effect of s. 11(d), then, is to transform this high duty of the judge at common law to a constitutional imperative. As I noted in Thomson Newspapers, at p. 563, judges must, as guardians of the Constitution, exercise this discretion where necessary to give effect to the Charter's guarantee of a fair trial. In a word, there is no need to resort to s. 24(2), or s. 24(1) for that matter. In such circumstances, the evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset.
[104] I agree with counsel for the applicants that it is only by entering into a s. 11(d) voir dire and examining this issue in detail that I can decide whether trial fairness will be affected by the admission of the impugned witness statements and evidence. Thus, accepting for purposes of the Vukelich Hearing the applicants' version of the facts as correct, including:
i. the ECCC investigators were beyond their statutory authority as they were conducting an investigation of SBT and FRPD at all relevant times,
ii. the various witnesses did not "consent" as that term is known in Canadian law when they gave their statements to the ECCC investigators, and
iii. the ECCC investigators did not meet the minimum standard of Charter compliance in gathering the evidence they have against the applicants,
the argument for a violation of the applicants' s. 11(d) rights is available to the applicants.
[105] In the result, I am exercising my discretion and I will allow both applicants to enter into a s. 11(d) voir dire alleging violations of their right to a fair trial and abuse of process.
CONCLUSION
[106] Given the nature of what is sought by the applicants and the anticipated evidence as set out in the written materials and argued before me at the Vukelich Hearing, I am of the view that we should engage in a single voir dire that addresses the applicants' s. 8 and 11(d) Charter arguments. The topics to be canvassed on the voir dire will be limited to the alleged violations of the s. 8 and 11(d) rights of the applicants, as argued before me during the Vukelich Hearing and as set out in the written materials filed with the court prior to the start of the Vukelich Hearing.
[107] That is my decision, gentlemen and ladies.
(RULING CONCLUDED)