Fisheries officers took samples from field during investigation of nearby river
The Prince Edward Island Court of Appeal has found it proper to exclude evidence obtained from potato fields that they entered without a warrant.
In R. v Skye View Farms Ltd. et al., 2022 PECA 1, dead fish were found in the Clyde River following heavy rain. During the investigation, fisheries officers entered the respondents’ potato fields several times to take foliage and water samples, photographs, videos and measurements.
The respondents were charged under the Fisheries Act with unlawfully depositing or permitting the deposit of a deleterious substance — specifically, agricultural run-off containing pesticides — in water frequented by fish, thus committing an offence under s. 40(2) of the Act.
The trial judge, finding a breach of s. 8 of the Canadian Charter of Rights and Freedoms, excluded the evidence obtained from the warrantless search under s. 24(2) of the charter. The Crown appealed, but the Summary Conviction Appeal Court saw no reason to interfere with the trial judge’s decision.
The Prince Edward Island Court of Appeal dismissed the appeal. The appellate court’s majority found that the trial judge and the judge of Summary Conviction Appeal Court failed to properly conduct the applicable two-step inquiry for analyzing a s. 8 charter breach. However, the judges conducted an appropriate contextual analysis and correctly concluded that there was a breach under s. 8, the majority said.
The majority found that the trial judge’s conclusion regarding remedy was reasonable and based upon the factors in R. v. Grant, 2009 SCC 32. Therefore, the trial judge properly excluded the evidence under s. 24(2) of the charter, the majority concluded.
The dissenting judge, however, would have granted leave to appeal and remitted the matter for a new trial in the Provincial Court, finding that excluding the evidence would bring the administration of justice into disrepute.
According to the dissenting judge, the first Grant factor — the seriousness of the charter-infringing state conduct — pointed toward exclusion, but not strongly. The second factor — the impact of the breach on the charter-protected interest — was minimal given that the respondents had a minimal expectation of privacy in the potato fields. The third factor — societal interest in adjudicating the merits — strongly pointed toward inclusion because the evidence was real, relevant and important to the Crown’s case and because the offence was a serious regulatory offence.
