R. v. Pasco Seafood Enterprises Inc., 2017 BCPC 453

Citation: R. v. Pasco Seafood Enterprises Inc. 2017 BCPC 453 Date: 20170623 File No: 60520-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PASCO SEAFOOD ENTERPRISES INC. IN THE MATTER OF AN APPLICATION FOR A JUDICIAL STAY OF PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: Alexander R. Clarkson Counsel for the Defendant: B. Rory B. Morahan Place of Hearing: Richmond , B.C. Dates of Hearing: March 29 & 30, 2017 Supplemental Submissions: May 8,15 & 16, 2017 Date of Decision: June 15, 2017 Date of Judgment: June 23, 2017

INTRODUCTION [1] On July 19, 2016, Pasco Seafood Enterprises Inc. (“Pasco Seafood”) was charged with five offences under the Fisheries Act. The activities underpinning the charges allegedly occurred between August 5 - 11, 2011. The charges were laid about three weeksbefore the five year limitation period set out in

section 82 of the Fisheries Act expired. [2] The trial of the charges has been set to begin on June 26, 2017. The trial is set for ten days, scheduled to conclude on July 7,2017.

At this point, it appears that the trial will conclude within about a year of the charges being laid. [3] On March 17, 2017, Pasco Seafood filed a Notice and Application alleging a breach of its rights under sections 7, 11(a), 11(b)and 15 of the Charter and alleging, as well, that the current prosecution constitutes an abuse of the court’s process. [4] Pasco Seafood seeks a judicial stay of proceedings in relation to all five charges as a remedy for the asserted breaches andabuse. [5] The application was heard on March 29 and 30, 2017. At that time, Pasco Seafood pursued sections 7, 11(

b) and 11(

d) Charterarguments as well as the abuse of process argument; it abandoned its argument that sections 11(

a) and 15 of the Charter had beenbreached. [6] At the close of the argument, I reserved my decision. [7] On April 27, 2017, a Crown appeal relating to pre-charge delay was allowed by the Supreme Court of Canada: R. v.

Hunt,2017 SCC 25, (appealed from 2016 NLCA 61 ). [8] I received further submissions from both parties with regard to the impact, if any, of Hunt, supra, on their respectivearguments, along with a final affidavit from Pasco Seafood attaching as exhibits some documents disclosed after the hearing, on April12, 2017. [9] I have now had an opportunity to consider all of the submissions on this application, along with all of the evidence. On June 15,2017 I dismissed the application. Below are my reasons for that decision.

Factual Background [10] The charges arise from Pasco Seafood’s alleged activities in relation to fishing that occurred in the Johnstone Strait of BC inearly August, 2011. The fishing resulted in about 140,000 pounds of salmon - mostly sockeye - being fished out of the strait.

At thetime, according to the Department of Fisheries and Oceans (“DFO”), this area was closed to all commercial fishing. [11] DFO is the federal agency responsible for the conservation and management of Canada’s coastal fisheries. [12] Notwithstanding the closure, it appears that an arrangement was reached whereby an individual named Ron Sparrow, on hiscommercial seiner, caught over 50,000 fish, at the behest of another individual, named Steven Tatoosh. Mr. Sparrow claimed to befishing under the authority of “permits” issued by Mr. Tatoosh. [13] It is alleged that Mr.

Tatoosh was, at the time, the chief of a First Nation that had no fishing rights in the area. Apparently, Mr.Tatoosh had entered into an agreement with the chief of a First Nation that did have fishing rights in the area, to fish. (The legitimacy ofthe arrangement is not agreed to by the parties to this application, as I understand it.) Mr. Tatoosh then got Mr. Sparrow to do thefishing. [14] In 2011, Pasco Seafood was a seafood processing company, in the business of purchasing, processing and re-selling fish. According to Pasco, a third individual, (Mr.

Stan Theologus), contacted Jason Ogilvie, (a principal of Pasco Seafood), about the fish thatMr. Sparrow was either going to catch, had caught or was catching; Mr. Theologus arranged to broker a sale of the fish to Pasco Seafood.The arrangement would be through Theologus’ company, Nu Natural. [15] Pasco allegedly bought the fish through Mr. Theologus and took possession of it; processed some if it and sold some of it.

Atsome point during the transactions, Pasco obtained “landing slips” in relation to the fish. (These become significant later). [16] On August 9, 2011 DFO officers attended Pasco Seafood and seized some of the fish. Pasco had sold the rest. [17] DFO sold the fish it had seized and received proceeds from the sale. These proceeds were eventually released to Pasco Seafoodby court order, following applications by Pasco Seafood. [18] In the 2011 Report to Crown Counsel filed on this application, Mr. Tatoosh, Mr. Sparrow, Mr. Theologus and Mr.

Ogilvie areall identified as either “suspects” or “persons of interest.” Not one of these men was charged. [19] At this hearing, Pasco Seafood advised that there remained outstanding disclosure relevant to this prosecution relating to StevenTatoosh. [20] On April 12, 2017 further disclosure was made, including documents from December, 2015 reflecting consideration by theDFO and prosecutors about engaging Mr.

Tatoosh in a restorative justice programme. (This programme is, as I understand it, a processmuch like ‘diversion’, where an individual acknowledges responsibility for some act but is not charged with an offence in relation to it). [21] While Mr. Tatoosh had apparently said that he would accept responsibility for his role in the fishing in the context of restorativejustice discussions, he had not signed any document acknowledging responsibility by the time the five year limitation period expired inAugust, 2016. He has, apparently, never signed the acknowledgment.

[ 22 ] Returning to the disclosure made in the case, Pasco says it reveals that nothing significant happened in the investigation after 2012; the Crown says that it was a large investigation, for a fisheries case and that it, in effect, continued until the Crown expert witness was secured in 2016. [ 23 ] At this point, it does not appear that the Crown intends to call Mr. Sparrow, Mr. Tatoosh or Mr. Theologus as witnesses in this prosecution. The Crown says that if Pasco Seafood wants their evidence, it can call them as witnesses for the defence. Parties’ Positions i.

Pasco Seafood [ 24 ] Pasco points to the unexplained passage of time between what it says is the end of the investigation and the laying of the charges in this case and the impact occasioned by that delay on trial fairness, asserting the loss of witnesses’ memory - Mr. Ogilvie and Mr. Theologus’, in particular - and the loss of documentary evidence. It says that its position to advance defences of due diligence, mistake of fact and officially induced error has been eroded as a result of the pre-charge delay.

In the circumstances, Pasco Seafood says that it has established a breach of its right to a trial within a reasonable time (s. 11(b)); a breach of trial fairness guaranteed by

section 11(

d) from the delay, an abuse of process under

section 7 of the Charter and, as well, under the common law. [ 25 ] Further, Pasco Seafood says that the Crown’s treatment of Mr. Tatoosh has prejudiced Pasco’s position at trial and that the Crown’s chosen course of conduct in relation to Mr. Tatoosh is a breach of Crown policies, which all support a finding that the court’s process is being abused by this prosecution. With regard to

section 7 of the Charter , Pasco says that given the quasi-criminal context of this case, as well as the wording of the Fisheries Act ,

section 7 extends to this corporate defendant in this prosecution. ii. The Crown/Respondent [ 26 ] The Crown says that, as a corporate defendant, Pasco Seafood has no

section 7 Charter rights; with regard to the common law doctrine of abuse of process, the Crown says that the decisions and actions taken in this prosecution and in regard to Mr. Tatoosh do not amount to an abuse but were, rather, proper exercises of Crown discretion, some of which benefit Pasco Seafood, rather than prejudicing the defendant. [ 27 ] The Crown says, further, that no breach of s. 11(

b) of the Charter has been established, given that the trial is set to conclude about twelve months from the laying of the charges, relying on the recent decision, R. v. Jordan , 2016 SCC 27 . The Crown says that pre-charge delay is irrelevant to a consideration of

section 11(

b) and says, as well, that Pasco has failed to satisfy the two preconditions required to succeed on a

section 11(

b) challenge under Jordan where the trial time is within eighteen months of the charge. [ 28 ] With regard to the issues of trial fairness, in consideration of allegations of abuse of process and in consideration of

section 11(

d) of the Charter and a purported breach, the Crown says that such applications are premature and, in any event, it has not been established that memory loss, if any, attendant on the pre-charge delay would prevent Pasco from having a fair trial. For similar reasons, the Crown says that there has been no breach of

section 11(

d) of the Charter . [ 29 ] The Crown submits that Hunt , supra , fortifies their submissions and, as well, makes clear there is no supervisory role for the court in relation to the conduct of investigations. The Evidence on the Application [ 30 ] The following affidavits were filed on the hearing: I. By Pasco Seafood: i. Affidavit #2 of Jason Ogilvie, former director and shareholder of Pasco, sworn March 16, 2017 ii. Affidavit of Mr. Ogilvie, #1, sworn on August 12, 2011 in support of BCSC injunction (appended as an exhibit to the Ogilvie Affidavit #2, referred to above); iii.

Affidavit #1 of Samara Graves, legal assistant, sworn March 14, 2017 appending the Report to Crown Counsel and Post Operation

Summary report in this case, the latter dated October 28, 2011; iv. Affidavit of Eileen Robertson, affirmed March 28, 2017; v. Affidavit #3 of Mr. Ogilvie, sworn March 27, 2017. vi. Affidavit #2 of Samara Graves, sworn May 8, 2017, (after the release of Hunt , supra , without opposition by the Crown), attaching documentation largely relating to DFO’s interactions with Mr. Tatoosh in 2011; DFO/Crown counsel discussions about Mr. Tatoosh in December 2015; DFO steps taken in relation to Mr. Tatoosh in 2016 - 2017 in relation to restorative justice. II. The Crown filed: i. Affidavit #1 of Amanda Buksh, legal assistant, sworn March 24, 2017 appending documentation relating to (

i) prior judicial proceedings regarding the fishing activity, and (ii) the history of this court file; ii. Affidavit #1 of Steve Thompson, Fishery Officer, sworn March 24 2017, summarizing the investigation and attaching

documents relating to it. ISSUES 1a. Does

section 7 of the Charter apply to Pasco Seafood, notwithstanding that it is a corporate defendant? 1b. If

section 7 of the Charter does apply to Pasco, has Pasco established, on a balance of probabilities, that it has been breached? 2. Has Pasco established that a breach of its

section 11(

b) Charter rights has occurred in this case? i. is pre-charge delay, post-Jordan, at all relevant? ii. applying Jordan, without pre-charge delay considered, what is the result here? 3. Has Pasco established that a breach of its

section 11(

d) Charter rights has occurred in this case? 4. If Pasco has established any of the alleged breaches, should a judicial stay of proceedings be granted, pursuant to section 24(1)of the Charter? 5. Has Pasco established an abuse of the court’s process in this case? 6. If Pasco has established that an abuse of the court’s process has occurred in this case, what is the remedy? DISCUSSION ISSUE 1a: Does

section 7 of the Charter apply to Pasco Seafood, notwithstanding that it is a corporate defendant? [31]

Section 7 of the Charter guarantees the following: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [32] There have been repeated statements by the Supreme Court of Canada that corporations do not enjoy

section 7 Charterprotection; this is because the interests that

section 7 protects have been found to be fundamentally human interests. (See: BC SecuritiesCommission v. Branch, (SCC), [1995] 2 SCR 3; Quebec (Attorney General) v. Irwin Toy Ltd., (SCC), [1989] 1 SCR 927). Most recently, this approach has been re-stated in Hunt, supra, (CA): [63] …. This [section 7] right generally protects the psychological and bodily integrity of a person…. [33] Pasco Seafood says that, although it is a corporate defendant, the protection of

section 7 extends to it because it seeks a remedyfor a

section 7 breach in a quasi-criminal context - as distinct from a commercial context where a declaration is sought (as was the case inIrwin Toy): This argument was addressed and rejected in R. v. CIP Inc, (SCC), [1992] 1 SCR 843: [22] … In Irwin Toy Ltd., it was not the absence of the penal proceedings per se that precluded the respondent corporation frominvoking s. 7.

Rather, the Court focused on the language of the right in combination with the nature of the specific interests embodiedtherein [the right to life, liberty or security of the person] and concluded that in that context s. 7 could not logically apply to corporateentities. I do not read that decision as ruling out the possibility of corporations asserting other Charter guarantees.

On the contrary,Irwin Toy Ltd. went only so far as to establish an appropriate analytical framework: whether or not a corporate entity can invoke aCharter right will depend upon whether it can establish that it has an interest falling within the scope of the guarantee, and one whichaccords with the purpose of that provision. [34] The case law does not support Pasco’s contention that the quasi-criminal nature of this case is sufficient to extend

section 7’sprotection to a corporate defendant. [35] Next, Pasco argues that the effect of s. 78.2 of the Fisheries Act is to afford

section 7 Charter protection to corporations whoseactivities are subject to the Fisheries Act. [36]

Section 78.2 of the Fisheries Act provides: Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized,assented to, or acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable onconviction to the punishment provided for the offence, whether or not the corporation has been prosecuted. [37] Pasco says that

section 78.2 renders directors vicariously liable for the actions of their corporation; that the subsection “piercesthe corporate veil,” leaving directors personally responsible and, thus,

section 7 Charter interests are engaged. [38] I do not read

section 78.2 the same way: rather, it seems to me that

section 78.2 provides that, even where an offendingcorporation is not charged, an individual corporate director may be charged as a party to an offence committed by the corporation, if thedirector acted in a certain way. I agree that, in such a prosecution, the individual corporate director would have the benefit of

section 7 ofthe Charter, but this would not extend to the corporation if it was also charged. [39] This distinction between rights available to an individual corporate director and a corporation is made clear in Branch, supra. There, the court confirmed the individual directors’

section 7 Charter rights in relation to derivative use immunity, but stated clearly that

section 7 did not protect the corporation: [37] Clearly, the individuals Branch and Levitt are entitled to claim the protection of subsequent derivative use. This is a protection thatis afforded to witnesses notwithstanding that the source of their evidence may derive from corporate activity. See R. v. Amway Corp., (SCC), [1989] 1 S.C.R. 21. On the other hand, the protection depends on the applicability of s. 7 of the Charter. ThisCourt has held that’s. 7 does not apply to a corporation. See Thomson Newspapers, supra.

It should be remembered that it will be up tothe judge hearing the matter to decide the specific application of subsequent derivative use immunity having regard to all thecircumstances. (Underlining added). [40] I am not persuaded that

section 78.2 of the Fisheries Act results in

section 7 of the Charter extending to corporate defendants ina prosecution under the Fisheries Act. Conclusion Re:

Section 7: [41] There is no basis on which to distinguish this case from other cases where corporations have sought to invoke s. 7 of theCharter. Pasco Seafood, as a corporate defendant, is not entitled to the protection of

section 7 of the Charter. [42] The answer to this first issue is “no. ISSUE 1b: If

section 7 of the Charter does apply to Pasco, has Pasco established, on a balance of probabilities, that it has been breached? [43] In light of the answer to Issue 1(a), this question does not require addressing. ISSUE 2: Has Pasco established that a breach of its

section 11(

b) Charter rights has occurred in this case? [44]

Section 11(

b) of the Charter guarantees: Any person charged with an offence has the right (

b) to be tried within a reasonable time. (

i) is pre-trial delay, post-Jordan, at all relevant? [45] Generally, the relevant time to consider in a

section 11(

b) analysis is the time between the laying of the charge and the trial;Pasco’s proposition that “charge” in this case, for the purposes of

section 11(b), means some event other than the swearing of theinformation does not appear to be a supportable position, given the case law. (See: R. v. Kalanj, (SCC), [1989] 1 SCR1594; Branch, supra; R. v. Luchuk, (1987), 39 CCC (3d) (BCCA); R. v. Jordan, supra). [46] The time between the laying of the information and trial in this case, as currently scheduled, will be less than twelve months. [47] Pasco, however, asserts a narrow relevance of pre-charge delay to a

section 11(

b) assessment; that is, when trial fairness isimpacted by the overall delay. This exception was recognized in R. v. Morin, (SCC), [1992] 1 SCR 771: As I have indicated, this factor requires the court to examine the period from the charge to the end of the trial. Charge means the date onwhich an information is sworn or an indictment is preferred (see Kalanj, supra, at p. 1607).

Pre-charge delay may in certaincircumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is notcounted in determining the length of the delay. (Per Sopinka, J at page 789, para. d/e; underlining added). [48] In R. v. Finn, (appeal dismissed, (SCC), [1997] 1 SCR 10), Marshall JA expanded onSopinka, J’s statement in Morin, supra, about the relevance of pre-charge delay to a consideration of

section 11(b): [54] …. It cannot be said that the right to a fair trial, in contrast with the other individual rights comprehended by s. 11(b), is incapableof being prejudicially influenced by events occurring during the pre-charge period. Where that delay adversely impinges, for example,upon an accused's right to make full answer and defence, the time span prior to the charge would have an obvious impact on the fairnessof the trial.

The concern that an accused's right to full answer and defence be unimpaired can be said to go to the very crux of thepurpose of guaranteeing trial within a reasonable time under s. 11(b). Indeed, it is reasonable to hold that no Charter of fundamentalrights would be complete without the basic assurance of the opportunity of full answer and defence on being charged with a criminaloffence.

The protection against impairment of that right indubitably must be construed as lying at the very kernel of any constitutionalguarantee to be tried within a reasonable time. (Underlining added). [49] Recently, Morin, supra, was overtaken as the leading case on

section 11(

b) by Jordan, supra. The majority in Jordan, supra,sets our two preconditions to an applicant establishing a

section 11(

b) breach where his/her trial is to be heard in provincial court withineighteen months of the laying of the charge; neither precondition appears to incorporate a consideration of pre-charge delay: [82] A delay may be unreasonable even if it falls below the presumptive ceiling.

If the total delay from the charge to the actual oranticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defencebears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps thatdemonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

Absentthese two factors, the s. 11(

b) application must fail.

(per Moldaver, J, in Jordan, supra) [50] Given that Jordan, supra, does not discuss pre-charge delay and its role - if any - in this new

section 11(

b) analytical approach,the question arises: Does pre-charge delay have any role to play in

section 11(b), post-Jordan? [51] In light of Madam Justice Holmes’ reasons in R. v. Curry, 2016 BCSC 1435, it appears that it does: In Curry, supra, Holmes,J briefly addresses the role of pre-charge delay in relation to

section 11(

b) of the Charter, in her consideration of the impact of delayarising from a stay of proceedings: She cites and quotes from Finn, supra, writing: [90] … As was explained in R. v. Finn (1996), (NL CA), 106 C.C.C.(3d) 43 (N.F.C.A.) at 60-63 (aff’d (SCC), [1997] 1 S.C.R. 10), pre-charge delay will be considered only to the extent that it has affected the right to make full answerand defence or the fairness of the trial, because of the interests that s. 11(

b) protects. (Underlining added). [52] The three interests

section 11(

b) protects are identified in Morin, supra, as the right to: (

i) security of the person; (ii) liberty; (iii) a fair trial. [53] While pre-charge delay is irrelevant to the first two

section 11(

b) interests, it may be relevant to the third - the right to a fairtrial. [54] In Finn, supra, Marshall JA states: [52] “The right to a fair trial is protected by attempting to ensure that proceedings take place when evidence is available and fresh…” [55] It is the overall delay, including pre-charge delay, and its prejudicial impact on Pasco Seafood’s ability to make full answer anddefence that the defendant says attracts the protection of

section 11(b). While Jordan, supra, moves sharply away from an analysisbased on prejudice, as mentioned, the decision does not address pre-charge delay; in Curry, supra, the Court does discuss pre-chargedelay, referring to Finn, supra, a decision which specifically recognizes a narrow role played by pre-charge delay in a

section 11(b)Charter analysis. [56] In Hunt, supra, Hoegg JA discusses pre-charge delay in her consideration of

section 7 of the Charter, referring to R. v.L(WK), [191] 1 SCR 1091, and quoting from Stevenson J’s judgment where he states: “the fairness of a trial is not automaticallyundermined by even a lengthy pre-charge delay … (page 1100);” the focus of the

section 7 discussion in Hunt, supra, is on trial fairnessand the potential impact pre-trial delay may have. The focus and language is reminiscent of the language used in Finn, supra, in relationto Morin, supra, and

section 11(b). In observing that pre-charge delay has no relevance to

section 11(b), Hoegg JA referred to Mills vThe Queen, (SCC), [1986] 1 SCR 863 and Kalanj, supra; it does not appear from the judgment that Finn, supra, wasbefore her for consideration. [57] The Crown’s position here with regard to incorporating pre-trial delay into a

section 11(

b) analysis is similar to that taken inHunt, supra: Crown counsel says that it would be an error in law to factor in pre-charge delay in a

section 11(

b) delay analysis; he says,rather, pre-charge delay should be considered in relation to

section s7, 11(

d) and the common law doctrine of abuse of process. TheCrown relies on Jordan for this position: [60] Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actualor anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not beallowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The purpose of s.11(

b) is to expedite trials andminimize prejudice and not to avoid trials on the merits” (p. 802). [58] As stated above, Jordan is not a pre-charge delay case. While Curry is not, either, Holmes J turned her mind to pre-chargedelay in the post-Jordan era and appears to have concluded that the jurisprudence relating to it remains good law. [59] Based on the view that Finn, supra, remains applicable, it appears that in order for Pasco Seafood to establish a breach ofsection 11(

b) incorporating the nearly five years of pre-charge delay in this case, Pasco must establish that the over-all delay - includingpre-charge delay - has adversely impacted its right to full answer and defence or affected some other circumstances such that the integrityand fairness of the trial is effected (see: Finn, supra, at para. 56). [60] Turning to the evidence: i.

Ogilvie Affidavit #1: August 12, 2011 [61] In mid-August, 2011, shortly after the Johnstone Strait fishing occurred and DFO began its investigation, Pasco sought aninjunction in the BC Supreme Court to prohibit DFO from contacting Pasco’s third party customers. Mr. Ogilvie swore this firstaffidavit in support of that application on August 12, 2011. Given the timing and purpose of the affidavit, it is not surprising that itcontains little evidence relevant to this trial’s fairness being adversely impacted by delay.

Much of the affidavit addresses economic andreputation consequences to Pasco as a result of DFO’s actions; these are not relevant to a consideration of

section 11(

b) of the Charter. [62] At paragraph 9 of the August 2011 affidavit, Mr. Ogilvie swears: [9] At the time when Pasco purchased the fish from Nu Natural, I had earlier been informed by a fisheries officer of the Defendant thatit was lawful to purchase fish from a First Nation fisherman who had a pink slip issued to him by the Natural Resources Manager of theFirst Nation.

No further details of this interaction are set out in this affidavit; however, the incident is referred to in Mr. Ogilvie’s second affidavit, filed on this application and discussed next. ii. Ogilvie Affidavit #2: March 16, 2017 [ 63 ] This second affidavit was prepared and filed in support of the current application. In it, Mr. Ogilvie describes a number of events that have occurred since the August 2011 fishing that Pasco says support the conclusion that its right to a trial within a reasonable time has been infringed as a result of the overall delay. a.

Loss of memories Jason Ogilvie - The DFO advice/officially induced error [ 64 ] Mr. Ogilvie deposes that his interaction with the fisheries officer, (referred to at paragraph 62, above), occurred at the Cheam fishery in 2009, only two years before the August 2011 affidavit was sworn.

He swears that as a result of the passage of time, his ability to secure the testimony of this Fisheries Officer (said to be relevant to a defence of officially induced error) has now been lost: [38] Because this information is now so old, I cannot remember what the Fisheries Officer looked like, and I would not be able to identify him. I am unable to make enquires so that I can provide this Fisheries Officer’s evidence in support of Pasco’s reasonable belief that they were lawfully in possession of the fish in this matter. [ 65 ] No explanation as to why Mr. Ogilvie is unable to make enquiries is set out.

For example, there is nothing in the evidence that suggests that Pasco’s representatives have asked DFO for the names of Fisheries Officers on duty during the Cheam fishery in 2009; it may be that, if that information was sought and provided, Mr. Ogilvie would be able to recall who it was he dealt with or seek follow-up disclosure to identify the person. [ 66 ] Nor is there evidence as to whether Mr. Ogilvie knew the name of the Fisheries Officer in August 2011, when he first mentioned the interaction: he does not name the officer in his August 2011 affidavit.

If he did not know the officer’s name in 2011, he has not lost memory as a result of the delay in laying the charges since 2011. [ 67 ] I am not satisfied that the effluxion of time is the only impediment to Pasco’s locating this possible witness; it appears that the inaction of the applicant may also be a factor. I am also not satisfied that the evidence establishes that the loss of memory has occurred as a result of the delay since 2011. [ 68 ] Finally, it is open to Mr.

Ogilvie to testify about this event; while that testimony may not be corroborated as it might have been, Pasco is not deprived of all evidence in relation to the event. - Stan Theologus [ 69 ] In his March 16, 2017 affidavit Mr. Ogilvie deposes that in August, 2011 he also relied on statements of Mr. Stan Theologus with regard to (

i) landing slips being sufficient to make possession of the fish lawful and (ii) his knowledge of the arrangement between Mr. Tatoosh, the Chief of the Hupacasath First Nation and Bill Cramer, the Chief of the Namgis First Nation. [ 70 ] He further deposes that: [39] …I am informed that Stan Theologus does not have a clear recollection of the events and therefore the evidence that he gives will be insufficient to assist my defence. His memory has degraded as result of the passage of time. [ 71 ] Obviously, this statement about the state of Mr. Theologus’s recall of relevant events is hearsay and inadmissible.

As well, while it may be that Mr. Theologus “does not have a clear recollection of the events” he may have some recollection and it may be sufficient to achieve trial fairness. That is impossible to assess at this point. b. Loss of evidence [ 72 ] In this affidavit, Mr. Ogilvie refers to Pasco’s shares being purchased by another company sometime after the August 2011 events. In its argument, Pasco says that this change in ownership has resulted in loss of documentation, not kept, apparently, because Pasco did not anticipate charges being laid, given the passage of time.

There are no details of the documents said to have been lost or their relevance to Pasco’s defence; thus, it is impossible to ascertain the impact of the documents’ unavailability to Pasco.

There are also no details of why the documents, said to be relevant to the activities of August 2011, were not kept by Pasco or forwarded to its successor: given the lengthy limitation period in the Fisheries Act , one would have expected some care to have been taken by a company like Pasco - heavily engaged in the regulated industry - to retain documentation relevant to fishing activities which had resulted in search warrants, seizures and court applications. [ 73 ] I am not satisfied that the evidence establishes loss of relevant documentary evidence as a result of the delay between the alleged offence date and the application. c.

Crown treatment of Mr. Tatoosh [ 74 ] Much of the remainder of Mr. Ogilvie’s second affidavit relates to Mr. Tatoosh: his being unsuccessfully diverted; evidence from him not being available to Pasco; his not being prosecuted: “Without the evidence of Mr. Tatoosh , Pasco Seafood Enterprises Inc. cannot present a full answer in defence.” [ 75 ] The Crown’s dealings with and decisions regarding Mr. Tatoosh have nothing to do with delay and trial fairness; they are

irrelevant to a

section 11(

b) consideration. iii. Ogilvie Affidavit #3: March 27, 2017 [ 76 ] Mr. Ogilvie’s affidavit of March 27, 2017 includes significant detail of a number of events relating to the circumstances underpinning the allegations herein; it also sets out several examples of conversation or events which Mr. Ogilvie deposes he no longer remembers in detail. [ 77 ] It is not infrequent that witnesses - even key witnesses - do not remember every detail of every event relevant to a case. In Mr.

Ogilvie’s third affidavit, he deposes that he forgets some details, but he clearly remembers other details about the events of August 2011 and Pasco Seafood’s involvement. [ 78 ] Mr. Ogilvie’s affidavit does not satisfy me that his memory has been so impacted by the passage of time that a trial on these charges would be unfair: he clearly remembers many of the events relating to Pasco’s involvement in the events underpinning these charges. iv. Eileen Robertson Affidavit No. 1: March 28, 2017 [ 79 ] The affidavit of Ms. Robertson was prepared for this application. Much of the affidavit relates to Mr.

Theologus’ memory and purports to contain direct evidence of his memory problems. [ 80 ] Ms. Robertson is Mr. Theologus’s ex-wife. She was his co-accused in a prosecution under the Fisheries Act conducted in 2001, to which she refers in her affidavit. She is not an objective, unbiased and disinterested witness; her position is clearly revealed in the affidavit itself. I will provide a few examples from her affidavit: [10] In my experience the DFO are like a bunch of mindless, out of control children, with no respect for the laws of Canada or the Charter of Rights and Freedoms.

They use the court system to beat people up causing them undue stress and suffering and extreme economic hardship. If there is anyway it is not too late to sue them for all the loss and harm they have caused Stan and I and our fish business I would gladly and whole heartedly begin an Action against them. [11] This is the true definition of a frivolous and vexatious prosecution. There is no way that this company knowingly bought illegal fish…. Given this apparent antipathy toward the Respondent on this application, I afford Ms. Robertson’s evidence little weight, generally. [ 81 ] With regard to Mr.

Theologus’ capacity to remember events from August, 2011, Ms. Robertson describes his being in a motor vehicle accident in November, 2000, in which he suffered a serious head injury, suffering trauma and neurological damage. The attached neurological report from 2002 corroborates her evidence that the accident occurred; it is, in my view, a cautious report identifying limitations inherent in it as a result of a heavy reliance on unsupported self-reporting by Mr. Theologus and his then-wife, Ms.

Robertson. [ 82 ] She deposes that “he cannot recall many of the events that occurred in August, 2011 (this was six years ago), respecting the case with Pasco Seafoods Enterprises” (paragraph 3 of her affidavit) and did not understand a draft affidavit presented to him recently (paragraph 4). [ 83 ] Ms. Robertson does not swear that he has no memory of the events. [ 84 ] She also swears that he is very physically ill and in hospital as of March 28, 2017. v. The Graves affidavits [ 85 ] The remainder of the affidavits filed on this application do not relate to the delay,

section 11(

b) and trial fairness analysis. Conclusion Re: s. 11(b) - pre-charge delay & trial fairness post – Jordan [ 86 ] I am satisfied that pre-charge delay continues to play a narrow role in relation to

section 11(

b) of the Charte r, as it relates to over-all delay and trial fairness. ( See: Curry , supra ; Finn , supra ). [ 87 ] In this case, notwithstanding nearly five years of pre-charge delay, it is clear that Mr. Ogilvie has some memory of the events relating to the August 2011 fishing and Pasco Seafood. It is not clear that Pasco Seafood has taken reasonable steps to locate evidence which is said to be relevant to the defence, particularly the identity of the DFO officer said to have told Mr. Ogilvie that the landing slips were sufficient, nor is there evidence that Mr. Ogilvie knew the name as at 2011.

No document, relevant to the defence, has been identified as lost as a result of the pre-charge delay. The evidence with regard to Mr. Theologus’s memory deficits is wanting. [ 88 ] While the pre-charge delay in this case has been lengthy, I am not satisfied that the evidence at this stage establishes that the over-all delay has undermined the fairness of the accused’s trial.

As noted in Hunt , supra , [67] “…the mere possibility of prejudice is insufficient to ground a finding that delay by the authorities prejudiced an accused’s right to make full answer and defence.” [ 89 ] Applying the language of Finn , supra , the evidence does not establish that the over-all delay - including pre-charge delay - has adversely impacted Pasco’s right to full answer and defence or affected some other aspect of the trial such that its fairness and integrity have been adversely impacted. [ 90 ] Having concluded that Pasco has not met the evidentiary burden required to establish a breach of

section 11(

b) in relation to the

overall delay - including pre-charge delay - and trial fairness and integrity, the next question to ask in relation to

section 11(

b) is whether Pasco has established a breach of s. 11(

b) according to the Jordan framework? ii. is a breach of s. 11(

b) established, post-charge? [ 91 ] This trial is set to be heard on June 26 - 29, 2017 and July 4 - 7, 2017. Given that the charges were laid on July 19, 2016, the case is well within the eighteen month limit set by Jordan , ( supra ). [ 92 ] Consequently, in order to establish a breach of

section 11(b), Pasco must demonstrate both that (

i) it took meaningful, sustained steps to expedite the proceedings and (ii) the time the case has taken markedly exceeds the reasonable requirements of the case, ( see: Jordan , supra , at paragraphs 85 - 88 ). i. Pasco took meaningful, sustained steps to expedite the proceedings [ 93 ] On this issue, the Crown points to two defence initiated adjournments of the first appearance in the case: from August 19, 2016 to September 30, 2016 and then to October 28, 2016, set out in email exchanges filed on this application.

The bulk of disclosure was made mid-August, 2016. [ 94 ] As of October 28, 2016, the Crown was ready to commence the trial at any time; counsel for Pasco Seafood was available for a one day pre-trial application on February 20 th , 2017 and an eight day trial any time from April 10 to May 31, 2017. [ 95 ] Those dates were not available to the court; thus, the pre-trial application was ultimately set for March 29 and 30 th , 2017 and the eight day trial set to begin June 26 th and end on July 7, 2017. [ 96 ] In the result, there was about two months defence delay at the beginning of the post-charge period.

I have taken into account counsel’s availability two months before the court could accommodate this multi-day trial, but, on balance, in all of the circumstances, do not conclude that this is a case where there have been “meaningful, sustained steps to expedite the case.” [ 97 ] Thus the first precondition to a successful

section 11(

b) challenge, (given that the case is expected to conclude well within eighteen months), is not made out ii. the time the case has taken markedly exceeds the reasonable the requirements of the case [ 98 ] Pasco has provided no evidence to support the conclusion that the reasonable time requirements of the case, from charge to trial, have been exceeded: I agree with the Crown that having this ten day trial set to be heard in Richmond within a year of the laying of the charges is extremely reasonable, verging on surprisingly quick. [ 99 ] Consequently, the second precondition for a successful

section 11(

b) challenge under Jordan is not met. Conclusion Re:

section 11(

b) Charter challenge - under the Jordan regime : [ 100 ] Given that the trial is set to conclude well below the eighteen month ceiling set by Jordan , supra , and that Pasco has not established either of the two pre-conditions to a finding of a breach in such a situation, Pasco has not established that there has been a breach of its

section 11(

b) Charter rights in this case. ISSUE 3: Has Pasco Seafood Established a Breach of

Section 11(

d) of the Charter ? [ 101 ]

Section 11(

d) of the Charter guarantees the following rights: Any person charged with an offence has the right (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [ 102 ] Pasco says that its right to a fair trial is also protected by

section 11(

d) where there is delay in a prosecution; in its written Argument submitted on March 29, 2017, the defendant makes reference to the interplay between sections 11(b) , 11(

d) and 7 of the Charter . [ 103 ] As discussed above in relation to

section 11(

b) of the Charter , the evidence does not establish that the delay in this case has occasioned trial unfairness; I am not satisfied that Pasco has established a breach of its right to trial fairness under

section 11(

d) based on delay. Conclusion Re:

Section 11(

d) Charter challenge : [ 104 ] Pasco has not established a breach of its rights under

section 11(

d) of the Charter . ISSUE 4: Should a judicial stay of proceedings be granted, pursuant to section 24(1) of the Charter ? [ 105 ] Section 24(1) of the Charter provides: 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 .

[106] Given that Pasco Seafood has not established a breach of a right guaranteed by the Charter, a remedy under section 24(1) is notavailable. ISSUE 5: Has Pasco Established an Abuse of Process at Common Law? [107] While

section 7 Charter protection is not available to the corporate defendant, the common law doctrine of abuse of process isavailable to Pasco, notwithstanding that the doctrine was merged with

section 7 of the Charter. (See: R. v. O’Connor, (SCC), 1995 CanLii51 ; Hunt, supra,(CA) @ para. 76). [108] The Supreme Court of Canada has identified two categories of abuse of process: the first is characterized by Crown conductwhich affects the fairness of an accused’s trial; the second, or “residual category” of abuse of process is characterized by Crownconduct which “risks undermining the integrity of the judicial process,” (See: R. v.

Babos, 2014 SCC 16 @ para. 31). [109] Pasco argues that there has been Crown conduct in this case which both affects the fairness of this trial and, as well, underminesthe integrity of the judicial system through its oppressive nature. Pasco argues this is evidenced by (

i) the unexplained delay between thealleged offence date and the prosecution; (ii) non-disclosure; (iii) a breach of Crown policies during the diversion process in relation toMr. Tatoosh; (iv) failure by Crown to comply with its asserted obligation to obtain evidence from Mr. Tatoosh; (

v) Crown’s failure toprosecute third party, (Mr. Tatoosh). [110] In order to secure a judicial stay of proceedings, the abuse must be of “the clearest of cases.” (

i) the unexplained delay between alleged offence date and prosecution [111] As discussed above in relation to

section 11(

b) and (

d) of the Charter, Pasco has not laid an evidentiary foundation to establishthat the delay in this case has resulted in unfairness in this trial, to date. [112] Hunt, supra, demonstrates that even a decade of pre-charge delay is not, of itself, sufficient to demonstrate that trial fairness hasbeen impacted: there, notwithstanding the deaths of people the defence said would have been helpful for their case, the court held thatthe impact of their unavailability was, “at best, speculative.” (see: para. 82).

That is the situation here, with Pasco; the impact of thedelay on the quality of the witnesses’ evidence is currently, at best, speculative. [113] Given that Pasco has not established that the Crown’s failure to lay the charges in this case from August 2011 until July 2016constitutes Crown conduct which has impacted the fairness of this trial, the delay does not support a finding that there has been abuse ofthe first category. [114] As noted above, the residual category of abuse of process is marked by Crown conduct which “undermines the integrity of thejudicial system.” The evidence with regard to the Crown’s conduct of the investigation comes largely from the affidavit of FisheriesOfficer Thompson: In his affidavit, he describes the investigation with little detail, such that an assessment of the scope, content andtimeline of the investigation is not ascertainable; he describes the investigation as “the largest and most complex” he has been involvedin and, to his knowledge, the largest in the history of DFO’s operations in BC.

He states that there were 47 fisheries officer involved inthe investigation; three dozen civilian statements taken in three provinces other than BC; that 19 judicial orders, including searchwarrants, production orders and tracking warrants were obtained and that disclosure exceeds 10,000 pages of documents.

Just what theofficers and civilians did, and when, is not stated, nor is the date of the judicial orders. [115] With regard to the timing of the investigation, he deposes that a large amount of the evidence was collected after November 25,2011 but does not say what that evidence is, stating only: “Over 580 documents were collected after this date,” (para. 4 of his affidavit).As well, all of the documents attached as exhibits to the officer’s affidavit relating to the investigation are dated 2011.

There is a notableabsence of detail about just when investigative steps were taken after 2011 and the investigative value of those steps. The one exceptionis the specific description of a step taken in 2016: “The last statement obtained was taken on January 8, 2016 from Rob Morely,” (also,para. 4).

What happened in the investigation from 2011 to 2016 and why the nearly four years was required, is not at all clear. [116] The officer also summarizes organizing the file for disclosure; again, there is no actual statement as to when the disclosure wasready or how long it actually took to compile, just vague statement such as “[t]his was a large undertaking,” (para. 5). [117] In his Affidavit #2, paragraph 34, Mr.

Ogilvie deposes that, based on his review of the disclosure “there have been no additionalfacts … discovered since 2012.” With the exception of the Morley statement, that seems likely, given the evidence filed.

Thus, I amsatisfied, based on the evidence, that it is likely that most of the evidence was gathered long before the charges were laid. [118] However, while it may well be that the investigation ended, for the most part, years before the information was sworn, that doesnot support a judicial remedy: Absent evidence that the Crown acted improperly “motivated by an ulterior purpose in carrying out [the]investigation” courts are not authorized to supervise how investigations are conducted. (See: Hunt, supra, para. 71).

There is no suchevidence here. [119] Furthermore, while the pre-charge period is lengthy, the charges have been laid within the time provided by statute; given thatthere is no evidence of improper Crown conduct of any sort nor has there been shown any adverse impact on the judicial system’sintegrity, the delay, of itself, does not support a finding that an abuse of the residual kind has been made out here. (ii) abuse as a result of late or non-disclosure [120] In its original argument (pre-Hunt), Pasco argued that the failure by the Crown to disclose material relating to the restorativejustice/diversion discussions between DFO and Mr.

Tatoosh was “constitutionally objectionable,” citing R. v. Livingstone, (BC SC), 1990 57 CCC (3d) 449 for the principle that late disclosure of “material exculpatory evidence”…may constitute an

abuse of process. (see: 469-71). I note that in Livingstone, supra, the trial judge found there had been mishandling by the Crown of filedocuments and loss of material evidence once in its possession; that is not the case here. [121] The material relating to Mr. Tatoosh’s possible diversion, which was disclosed on April 12, 2017, (after the hearing on thisapplication), is not “exculpatory evidence” in relation to Pasco. The material consists largely of DFO notes documenting variousconversations with Mr. Tatoosh, with Crown counsel and amongst DFO personnel about Mr. Tatoosh’s possible diversion.

Based on thedocumentation appended to Ms. Graves’ May 8 2017 affidavit, it appears that, for some reason, the diversion discussions did notcommence until December 2015 or early 2016. [122] The latterly disclosed restorative justice agreement, (apparently drafted for Mr. Tatoosh’s signature,) mirrors, in content, muchof the information set out in the Executive

Summary contained in the Report to Crown Counsel (2011), which I understand to have beenin the original disclosure in this case. Given this, the new disclosure does not add much. Similarly, Pasco did not identify any significantdetail contained in the notes of Fisheries Officer Robson (disclosed April 12, 2017) prejudicially not disclosed in the earlier disclosure. [123] Nothing in this material filed can be fairly described as “exculpatory” in relation to Pasco; in my view, while it is relevant in thatit sets out what Mr.

Tatoosh could be expected to say, if called by either party as a witness, it also supports the conclusion that Mr.Tatoosh was not viewed by the Crown as a witness. (As mentioned above, the Crown does not intend to call Mr. Tatoosh at trial).

WhileI am satisfied that at least some of the material is relevant to the Pasco Seafood prosecution and, thus, should have been disclosed, thatdefect has now been cured; I am not satisfied that the late disclosure or the content of that disclosure is of such a nature as to constituteCrown conduct which impacts either trial fairness or trial integrity: by the time the case starts, Pasco Seafood will have had thedisclosure for over two months. Unfairness as a result of breach of Crown policies [124] After receiving the April disclosure relating to the diversion process engaged in in relation to Mr.

Tatoosh, and after being givenan opportunity to provide submissions regarding Hunt, supra, Pasco now sites the diversion process begun in relation to Mr. Tatoosh asevidence of oppressive Crown action involving an element of injustice or unfairness (see: para. 95 of Hunt).

Pasco says that theCrown’s reasons for engaging in the diversion process at all were politically or financially motivated - not consistent with the programand in breach of DFO’s policies. [125] Decisions with regard to how a matter should be prosecuted (or not) are decisions which fall within the discretion of the Crown,not the court: It is fundamental to our system of justice that criminal proceedings be conducted in public before an independent and impartialtribunal. If the court is to review the prosecutor's exercise of his discretion the court becomes a supervising prosecutor.

It ceases to bean independent tribunal. [Emphasis added.] (per L’Heureux Dube, J, R. v. Power (SCC), [1994] 1 SCR 601 @ p. 623 para. e/f). [126] I am satisfied that decisions with regard to whether to pursue a restorative justice resolution; to lay charges, or do nothing inrelation to Mr. Tatoosh’s conduct all fall squarely within the Crown’s purview, not mine.

There are a myriad of factors underpinningsuch decisions to which a judge is not privy, but which the Crown is. (See: Power, supra). [127] Even if I had the jurisdiction to consider whether the Crown implemented the restorative justice process in breach of its policiesin relation to another individual, I am at a loss as to how that would be relevant to Pasco Seafood. [128] Furthermore, just what Pasco means by the restorative justice policy being implemented for “political and cost” reasons is notclear: the documents filed on this application support a conclusion that a significant reason underpinning the diversion decision related toconservation: in one document, the DFO officer writes about Mr.

Tatoosh’s “efforts toward fisheries conservation over the last fiveyears.” There is no evidence that such factor is inconsistent with DFO’s restorative justice policies. [129] In the result, I simply do not see a factual basis with regard to Mr. Tatoosh and the restorative justice process pursued in relationto him, to support a finding that there has been Crown conduct adversely impacting this trial’s fairness or adversely impacting theintegrity of the justice system. That is in addition to the jurisdictional hurdle identified above. (iii) abuse from the Crown’s failure to secure Mr.

Tatoosh’s written acceptance of responsibility for his role in the August 2011fishing [130] Pasco Seafood argues that the Crown (

i) was required, under the restorative justice regime, to obtain Mr. Tatoosh’s writtenadmission of responsibility, and (ii) failed to do so and thus deprived Pasco of material evidence. [131] On July 29, 2016 an email was sent by DFO to Mr. Tatoosh enclosing an introductory email along with a restorative justice information pamphlet and draft restorative justice agreement. In the July 29th email, the DFO officer writes: Please endorse this Restorative Justice agreement if you accept responsibility for the allegations.

This is not an admission in any wayand is only a mechanism to clarify your acceptance of responsibility as a necessary prerequisite before entering the DFO restorativejustice process. (Underlining added). [132] While I agree with Pasco that the email indicates that Mr. Tatoosh’s signature is a precondition to the restorative justice processbeing engaged, there is nothing to support Pasco’s assertion that DFO was “obligated to secure evidence from Mr. Tatoosh by havinghim sign an admission of responsibility….” The email refers to Mr.

Tatoosh’s signature being required to acknowledge an acceptance ofresponsibility, but also states that he is not making “an admission in any way.” [133] There is nothing before me to support the conclusion that Mr. Tatoosh was under any obligation to speak to DFO, or to provide a

statement or admission of any kind to anyone with regard to his role in the August 2011 fishing. [ 134 ] Pasco complains that Mr. Tatoosh currently asserts his right to remain silent; he has always had that right . [ 135 ] In addition, as noted by the Crown in its argument filed May 15, 2017, any signed statement by Mr. Tatoosh would simply be an out of court statement, no more admissible than a verbal out of court statement.

The evidentiary value of such hearsay and the dramatic effect on trial fairness claimed by Pasco Seafood as a result of its absence is simply not made out. [ 136 ] The Crown’s failure to obtain Mr. Tatoosh’s full cooperation in the restorative justice/diversion process does not amount to improper Crown conduct or result in any unfairness to Pasco Seafood and does not support a finding of an abuse of the court’s process. (iv) Abuse arising from the Crown’s failure to charge Mr. Tatoosh and thereby prejudicing Pasco’s defence at trial [ 137 ] Pasco says, alternatively, that the Crown’s failure to charge Mr.

Tatootsh is abusive in that Pasco will be deprived at trial of evidence relevant and admissible against Tatoosh, which will not be entered in a prosecution of Pasco Seafood alone; as well, defences relating to aboriginal rights will not be available to Pasco Seafood but might have been raised by Mr. Tatoosh. [ 138 ] As noted above, the decision as to who is charged, and who is not, is a discretion which falls to the exercize of the Crown, not the courts. ( See: Power , supra ). [ 139 ] Furthermore, the idea that Pasco has been prejudiced by Mr.

Tatoosh’s not being charged, has a number of inherent problems: First, it presupposes that charges against Mr. Tatoosh would have been laid in the same charging document as that containing the Pasco charges; that is speculation. As well, as pointed out by the Crown, it is impossible to speculate what evidence the Crown would call at a prosecution of Mr. Tatoosh and to speculate as to whether any statements sought to be led would be found to be admissible for the purposes that Pasco might seek. [ 140 ] Also, as noted by the Crown, if Mr. Tatoosh were a co-defendant of Pasco, Pasco could not compel Mr.

Tatoosh to testify; as things stand, Pasco can. [ 141 ] Pasco also says that the failure to charge Mr. Tatoosh as a co-accused, has resulted in certain defences associated to aboriginal rights being rendered irrelevant in the case. That may be so, but just how that underpins prejudice to Pasco has not been established here. [ 142 ] The Crown’s decision not to prosecute Mr. Tatoosh does not constitute Crown conduct which supports a finding of abuse of process in the Pasco Seafood prosecution.

CONCLUSION WITH REGARD TO THE ALLEGED ABUSE OF PROCESS [ 143 ] Considered individually or collectively, the decisions and actions taken by the Crown in this case do not constitute conduct which supports a finding that either the main or residual type of abuse of process has or is occurring in this case: the Crown’s conduct in this case has not been shown to have impacted the fairness of Pasco Seafood’s trial nor has it been shown to have “undermined the integrity of the judicial system.” [ 144 ] As noted above, an abuse of process requires the court to be satisfied that the abuse is of “the clearest of cases.” The concerns raised here do not come close to meeting that high threshold.

An abuse of the court’s process is not made out. CONCLUSION ON THE APPLICATION [ 145 ] I have found no breach of the Applicant’s Charter rights and have, as well, found no abuse of the court’s process. [ 146 ] Given the foregoing, Pasco Seafood’s application for a judicial stay of proceedings, pursuant to either section 24(1) of the Charter or pursuant to this court’s power to control its process is dismissed. [ 147 ] The case will proceed to trial on June 26, 2017 at 9:30 in the morning. The Honourable Judge L. Smith Provincial Court of British Columbia