IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On August 6, 2020, the Department of Fisheries and Oceans Canada (DFO) executed a search warrant on property owned by Mr. Robert Tingley resulting in the seizure of an Hitachi EX120 Excavator (the “excavator”) owned by Mr. Tingley. The search warrant and assistance order were granted on the basis that Fishery Officer Tadei had reasonable grounds to believe that Mr. Tingley had committed the offence of “causing harmful alteration, disruption and destruction to fish habitat” contrary to sections 35 (1) and 40 (1) of the Fisheries Act of Canada (the “Act”).

[2]         Under the authority of s. 490 (1)(b) of the Criminal Code, Officer Tadei was granted an order that the excavator be detained for three months from the date of the seizure.

[3]         The detention order expired on November 6, 2020. The Federal Crown applies to extend the detention order until June 30, 2021. Notice of the application was provided to Mr. Tingley, who opposes the application.

[4]         The application for the extension was filed on November 16, 2020, and scheduled for hearing on November 17, 2020. The hearing did not proceed that day due to a power outage at the Courtenay courthouse and it was rescheduled to December 31, 2020.

[5]         I had the benefit of submissions from Ms. Russell, counsel for the Public Prosecution Service of Canada, and from Mr. Tingley. In support of the application, Officer Tadei filed an affidavit summarizing the history of events and outlining the reasons supporting the application to detain the excavator.

[6]         The history outlined in the affidavit begins with events on May 15, 2020, when Officer Tadei delivered a written direction to Mr. Tingley to remediate the excavation work that he had conducted along the Trent River, which runs through his property, by June 15, 2020. The written direction also stated that failure to comply would result in a summons to attend court, presumably following charges being laid. When Mr. Tingley told the officer that he would not comply, Officer Tadei warned Mr. Tingley that if he continued excavation works in the river, he “would be forced to seize the excavator in order to stop the continuation of the offence.”

[7]         As required by the direction, no removal plans were submitted by Mr. Tingley and on July 28, 2020, after receiving information that Mr. Tingley was continuing to excavate along the river, Officer Tadei attended the property. Along with freshly excavated areas on Mr. Tingley’s property, he found that the excavator was being operated in the “wetted area of the river” on Mr. Tingley’s property by someone hired by Mr. Tingley. The operator advised Officer Tadei that Mr. Tingley had directed him to lower the grade of the river and, among other things, carry out work intended to divert the flow of flood water.

[8]         Officer Tadei took photos, a video of the scene and a statement from the operator of the excavator. He directed the operator to cease work immediately.

[9]         Officer Tadei obtained and executed the first search warrant on August 1, 2020, for the purpose of seizing the excavator in order to stop the commission of Fisheries Act offences. The excavator was on adjacent land and Mr. Tingley would not, or could not, assist in removing the excavator, requiring Officer Tadei to return with an assistance order on August 6, 2020. This time, the excavator was seized.

[10]      In his affidavit, Officer Tadei stated that he believed the work carried out by this operator, at the direction of Mr. Tingley, “resulted in the harmful alteration, disruption or destruction of fish habitat contrary to Section 35 (1) of the Act.

[11]      He outlined the steps taken in the investigation and submitted a report to Crown counsel recommending the following charges pursuant to the Act:

[12]      Based on submissions from Mr. Tingley, it is apparent that he has been involved in an ongoing disagreement with the DFO about the portion of the Trent River on his land and the works carried out in and around that river. The history goes back to 2005, about six years after he bought the land. I don’t need to go into the details for the purposes of this application, but essentially there is considerable disagreement over management of the flow of the river. Mr. Tingley advised that over the years, the DFO has brought a large number of experts onto his property to assess the river and its impact on the fishery. At some point, the way the river flowed was changed and, according to Mr. Tingley, this has caused serious problems both for his land, and in his view, to the fish stock.

[13]      The relevant provisions of the Criminal Code that govern detention orders set out the following:

[14]      In her submissions, Crown counsel referred to R. v. Classic Smokehouse and Leader Cold Storage, 2012 BCPC 232 (CanLII). That case involved the seizure of property based on allegations of offences of “failing to keep records”, contrary to s. 61 (3) of the Fisheries Act. In that case, the application was made before the detention order had expired and required a consideration of s. 490 (2), not, as in the application before me, s. 490 (9.1). However, Judge Howard reviewed a number of authorities discussing the legal principles that inform the determination of an application to extend a detention order. Many of those principles have general application to any application to extend a detention order and have assisted me in reaching my decision.

[15]      As set out in para. 14 of her decision:

[16]      The general principles applicable to the application before me can be distilled from paragraphs 15 to 18 of Classic Smokehouse (cites omitted):

[17]      There are four levels, or stages, of the detention process which require different considerations. The first level is the initial detention order as set out in s. 490 (1)(a). At this stage, the Crown must establish that the detention of a thing seized is required for the purposes of any investigation, or a preliminary inquiry, trial or other proceeding. The detention must not be for a period longer than three months after the day of the seizure or when an application to extend is decided.

[18]      The second stage involves an application to extend an unexpired detention order beyond three months, when proceedings have not commenced. At this stage, the Crown must satisfy the court that, after considering the nature of the investigation, further detention is warranted: s. 490 (2)(a).

[19]      At the third level, to obtain extension of an unexpired detention order that exceeds one year from the day of the seizure, the Crown is required to establish that, due to the complex nature of the investigation, further detention is warranted: s. 490 (3).

[20]      Further detention for any period of time may be ordered if the lawful owner of the thing seized consents: s. 490 (3.1).

[21]      The fourth stage concerns an application to extend a detention order that was expired when the application was filed and proceedings have not been commenced.  In those circumstances s. 490 (9.1) is applicable.

[22]      In contrast to the first three stages, if the detention order has expired when the application is made, the applicant must establish that the thing detained might “reasonably be required” for an investigation or other purpose mentioned in s 490(1) or (4) and, additionally, that it is in the interests of justice to extend the detention order. If those two requirements are met, the court can extend the period of detention for any period considered necessary.

[23]      There are three reasons advanced in support of the application before me:

[24]      This requires some evidence relating to the offence, the nature of the investigation and investigative steps that are still needed. I am mindful that a judge must be careful not to embark on an assessment of the reasonableness of the investigation before the application (Classic Smokehouse, para. 29). However, in my view, the steps already taken in an investigation may be relevant to determine whether or not the item detained might still reasonably be required for an ongoing investigation and if additional steps are still required.

[25]      Officer Tadei’s affidavit outlines the course of the investigation to date. In addition to the initial investigative steps, an expert completed an onsite inspection of the Tingley property and, in a report dated on or about November 4, 2020, provided an opinion that harm was caused to fish habitat by the work completed on Mr. Tingley’s property (para. 16, Tadei affidavit).

[26]      On November 5, 2020, Officer Tadei submitted a report to Crown counsel (RTCC), along with the expert report, and recommended charges for the four counts set out in paragraph 11 of my decision. On November 12, 2020, Crown counsel for the Public Prosecution Service of Canada (PPSC) asked Officer Tadei to prepare a supplemental report and told him that they would not review the RTCC package until it was complete. Furthermore, Officer Tadei was advised that once the RTCC package was completed, PPSC counsel would require approximately six months to complete the charge review process (para. 15, Tadei affidavit). At the time of this hearing, the supplemental report had not yet been submitted.

[27]      Crown counsel, when asked to outline the need for the continued detention of the excavator for the ongoing investigation, was candid and told the court that it was “not needed for the moment” but that she could not “preclude the possibility that a colleague would want some test on the excavator”.

[28]      On the evidence before me, I am not satisfied that Crown has established, to the requisite standard, that the further detention of the excavator might reasonably be required for the investigation, preliminary inquiry, trial or other proceeding. I keep in mind that the test is not an onerous one and less than a balance of probabilities. However, there must be some evidence linking the need for continued detention of property to the ongoing investigation. Here, Crown counsel was only able to say that she couldn’t rule out that, in the future, someone else might possibly want a test on the excavator. She was not able to articulate what kind of test that might be or how it would relate to the investigation of the alleged offences.

[29]      Crown counsel already has considerable evidence in the form of photographs, video footage apparently showing the excavator being used at or near the Trent River, expert evidence from an expert who conducted a site visit and analysis and, in addition, at least one statement from the operator of the excavator - all related to the alleged offences. I am not able to find, even on a standard less than a balance of probabilities, that the continued detention of the excavator would reasonably be required to further or continue the investigation. This is not a situation like Classic Smokehouse in which Crown was required to undertake the time consuming and complex task of studying numerous and confusing documents coupled with a complex and cryptic accounting system. That is not to say that all applications for an extension require that type of evidentiary foundation, but there must be something linking the need to detain the item seized and the ongoing investigation.

[30]      Other reasons were asserted for the continued detention of the excavator – to prevent the commission of another offence and in the event of a forfeiture hearing. The Criminal Code provisions establish the basis upon which further detention may be granted and prevention of another offence is not one of them. In my view, this is not a proper ground for detention.

[31]      I have considered whether a forfeiture hearing would fall within the ambit of “other proceeding” and conclude that it does not. The words “other proceeding” follows the words “preliminary inquiry” and “trial”. These are proceedings that will, respectively, determine whether there is sufficient evidence to place an accused on trial and ultimately, to determine the innocence, or guilt, of an accused person.

[32]      A proceeding has been defined in the following terms:

[33]      Under the Code, a forfeiture order may be made after an accused is discharged or convicted of an indictable offence and the court is satisfied that the detained property is offence-related. Similarly, under the Fisheries legislation, an order for forfeiture may be made following a conviction. In my view, this is not a proceeding intended to advance or continue the litigation, but an application for an order after the conclusion of the proceedings.

[34]      If I am wrong about this, I have considered the intent of the provisions in the Code. In the matter before me, Mr. Tingley has not yet been charged with an offence. It may be several months before charges are approved and an information sworn. Time to trial would add an even longer period during which the property remains seized. If Crown is able to detain seized items on the basis that those items might be subject to forfeiture in the event of a conviction, property could be detained for lengthy periods of time. The provisions in the Code include safeguards to balance the interests of lawful owners of property and the public interest in the proper administration of justice. For example, even where proceedings are commenced, Crown must establish that the items detained may be required for the proceeding: s. 490 (2)(b) and (3)(b).

[35]      I conclude that, in these circumstances, Crown has not established that the continued detention of the excavator for the purpose of facilitating a possible successful forfeiture order is contemplated by the provisions of s. 490.

[36]      However, if I am wrong in this conclusion, I go on to consider the second part of the test under s. 490 (9.1).

[37]      The Crown must also establish that an extension of the detention order is in the interests of justice. Officer Tadei says that an extension is in the interests of justice because the offence being investigated is serious (para. 18, Tadei affidavit).

[38]      Crown counsel asserts that it is in the interests of justice because the reason the detention order expired prior to the application being filed was a lack of court time and not because of delay on the part of the officer.

[39]      I was not provided with any case law discussing or applying this requirement. However, the phrase “in the interests of justice” is discussed in many other contexts in both civil and criminal law. It requires a balancing and a consideration of various and, at times, competing interests.

[40]      In the context of the application before me, one important interest relates to the continuing investigation of a fisheries offence. Fisheries offences are serious because they impact a highly vulnerable resource. Furthermore, they are often difficult to detect because of the sheer size of the fishery and the few number of fisheries officers tasked with the detection and investigation of such offences. The public, and society as a whole, has an interest in seeing offenders investigated and ultimately prosecuted, thereby protecting the fisheries.

[41]      As noted at the outset of this decision, this interest must be balanced with rights of the lawful owners of seized property. Seizure of property may result in financial loss, personal hardship or other negative consequences arising from the loss of use of that property and this must also be considered in assessing whether it is in the interests of justice to order further detention.

[42]      Officer Tadei referred to the timing of his application at para. 20 of his affidavit:

[43]      During Crown counsel’s submissions on this point, I noted that the application, although filed on November 16, 2020, was signed by Officer Tadei on November 10, 2020, after the original detention order had expired. Crown counsel advised me that the officer prepared the application after being told that the first available date for his application was November 17, 2020. She further advised that on November 17, 2020, there was a power outage at the Courtenay courthouse and the hearing of the application was adjourned to December 31, 2020.

[44]      In these circumstances, I do not consider that there was a lack of court time, or that even if it was, it is an appropriate consideration in determining whether continued detention is in the interests of justice. It is always open to the Crown to file an application to extend a detention order well prior to the expiry date. For example, in Classic Smokehouse, the fishery officer filed a notice of application in May, approximately two months after the seizure, although the hearing did not begin until later in June with a continuation in July. By virtue of filing the application before the expiry of the detention order, the applicable section of the Criminal Code was s. 490 (2) and not, as here, s. 490 (9.1). This is not meant to be critical of the officer in this case who has clearly been working extensively on this investigation.

[45]      Mr. Tingley resides on and owns three adjacent rural properties. The Trent River flows through at least one of the properties. In his submissions, he told the Court that after the DFO changed the flow of the river, the flood levels are higher and, in his view, harmful to the fish habitat. It is clear to me that, although he has known Officer Tadei for three or four years, the relationship between Mr. Tingley and the DFO has deteriorated.

[46]      Mr. Tingley is opposed to the application for an extension of the detention order. He uses the excavator extensively for repairs, fixing things and other works on his land. He also rents it out to others and has or will incur a potential loss of revenues if it is not returned. Crown counsel, in reply, suggested that Mr. Tingley owns another piece of equipment that he could use for projects on his property, but Mr. Tingley advised that this is just a garden tractor. I accept that this is not comparable in size or functionally to the excavator that was seized.

[47]      In balancing the interests of justice, I have considered my conclusion that the Crown has not satisfied me that the excavator might reasonably be required for a purpose in s. 490 (1) or (4) as well as the impact to Mr. Tingley if he continues to be deprived of the use of his excavator.

[48]      I have concluded that Crown has not established that the continued detention of the excavator is in the interests of justice.

[49]      The Crown’s application is dismissed and the excavator is to be returned to Mr. Tingley.

[50]      The parties are at liberty to appear before me for directions if necessary.