R. v. Dyer Date:, 2017 BCPC 281

Citation: R. v. Dyer Date: 20170628 2017 BCPC 281 File No: 16297-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TODD GEORGE DYER RULING ON VOIR DIRE OF THE HONOURABLE JUDGE CROCKETT (Via Videoconference) Counsel for the Crown: N. Holubowich Counsel for the Defendant (appearing by videoconference): S. Runyon Place of Hearing: Port Hardy , B.C. Dates of Hearing: March 16, and June 1, 2017 Date of Judgment: June 28, 2017

[ 1 ] THE COURT: This trial commenced on March 16th, 2017, and continued on June 1st, 2017, in Port Hardy, British Columbia. [ 2 ] This is my ruling on a Charter voir dire . [ 3 ] Mr. Dyer submits that his s. 7, 8, 9, 10(

a) and 10(

b) rights were violated in relation to his interactions with Department of Fisheries and Oceans officers, specifically Fisheries Officer Jackson. He seeks exclusion of statements made by him to the fisheries officers and the prawns seized from his boat. [ 4 ] Fisheries Officer Jackson testified that he has been a fisheries officer for six years. On December 12th, 2013, he, along with Fisheries Officer Claire, attended the government wharf in Coal Harbour to inspect the vessel Swell Dancer .

Officer Jackson clarified in cross-examination that he went to check for fisheries compliance and to ensure the fishing was of a legal nature. [ 5 ] The information received was from a confidential informant, so much of the information was redacted from disclosure to defence. It became clear from the evidence that the information was in relation to the Swell Dancer in particular. In short, the fisheries officers had received information related to that particular boat and were following up on that tip. [ 6 ] Officer Jackson approached the boat. He saw prawn traps on board. Two males were inside the wheelhouse.

Mr. Dyer was seated at the operator's seat of the vessel, and Mr. Ralph Wilson was standing next to him. Officer Jackson stood by the window of the wheelhouse, and Mr. Dyer opened the window. He announced that he was a fisheries officer and asked Mr. Dyer if he had been fishing that day. Mr. Dyer answered yes. [ 7 ] Officer Jackson asked him where he had been fishing, and Mr. Dyer responded, "Rupert Arm." Mr. Dyer told him they had caught eight pounds of prawns and the fishing was slow. [ 8 ] Officer Jackson asked him about the gear that was in the water. Mr.

Dyer told him that he had two strings with 15 traps per string set in the water, for a total of 30 traps. [ 9 ] Officer Jackson asked where the fish they caught was stored. Mr. Dyer indicated it was in a blue tote, with a secure lid, on the vessel. [ 10 ] Officer Jackson asked what the fish was going to be used for. Mr. Wilson said the fish were going to be taken to his family. Mr. Dyer said he had a permit. Officer Jackson asked if they were food fishing, and Mr. Dyer said yes. [ 11 ] Officer Jackson asked to see the permit which authorized him to fish for food. Mr.

Dyer produced an A-Tlegay Fisheries Society Communal Fisheries permit, in the name of Ralph Wilson. The permit allowed food fishing in areas numbered by the Department of Fisheries and Oceans as Areas 11, 12 and 13. Rupert Arm, where Mr. Dyer said they had been fishing, was not in any of those areas. It was in Area 27. [ 12 ] Mr. Dyer also produced a valid tidal waters sport fishing licence and an expired fisher's registration card. The sport fishing licence only permitted four prawn traps and a maximum of 200 prawns per day. Neither document permitted Mr.

Dyer to catch the number of prawns he had on board. [ 13 ] Officer Jackson asked Mr. Dyer if he had any other designation from the local First Nations in the area. Mr. Dyer said no. [ 14 ] From the dock, Officer Jackson looked into the blue fish tote, which was on the side of the vessel adjacent to the dock. He saw live bull prawns in the tote. A total of 403 prawns were eventually counted by the fisheries officers. [ 15 ] Officer Jackson asked Mr. Dyer if those were the prawns he caught in Rupert Arm. Mr. Dyer responded yes. [ 16 ] At that point, Officer Jackson told Mr. Dyer and Mr.

Wilson they were under investigation for the illegal possession of fish, and provided an official Charter and warning from memory. When asked if he understood, Mr. Dyer said yes. [ 17 ] Officer Jackson asked Mr. Dyer if he wanted to speak to a free legal aid lawyer, but did not advise him he could speak to his lawyer of choice. When asked if he wanted to contact the free legal aid lawyer, Mr. Dyer said no. [ 18 ] Officer Jackson boarded the boat and inspected the hold. He saw the navigational system inside the wheelhouse. He asked about which program Mr. Dyer used, and he replied "Nobletec." Mr.

Dyer told him that he had his traps on the Nobletec program. [ 19 ] Officer Jackson entered the wheelhouse. Mr. Dyer put the area he was fishing on display so Officer Jackson could see where the traps were set. Both of the traps were in Area 27. Officer Jackson confirmed with Mr. Dryer that the traps shown on the navigational system were the two sets of 15 prawn traps he currently had in the water. Mr. Dyer later told Officer Jackson that he thought he was in Area 11, not Area 27, and he had not intended to do anything illegal. [ 20 ] Officer Jackson told Mr.

Dyer he was going to seize the prawn traps in the water. Mr. Dyer responded, "Fuck that, I am going to get my traps." Officer Jackson told Mr. Dyer that handling the prawn gear in the water would be obstruction and could result in additional charges, as well as arrest and seizure of the vessel. [ 21 ] Officer Jackson testified that he understood Mr. Dyer was the skipper of the vessel, but it was not clear how he came to that understanding. [ 22 ] Officer Jackson proceeded to the two locations where Mr. Dyer said his prawn traps were set. On his way there he passed Mr. Dyer, who was coming back to the dock. Mr.

Dyer had gone out to pull up some crab traps. Officer Jackson again asked where his prawn traps were set, and he pointed in the direction of Rupert Inlet.

[ 23 ] Officer Jackson searched for approximately two hours, but did not find any fishing gear or buoys with identification markers linking them to Mr. Dyer or his vessel. [ 24 ] Officer Jackson returned to the dock. Mr. Dyer provided him with coordinates of where the traps could be found, along with descriptions of the colour and shape of the buoys. Officer Jackson searched for the traps again, until it became too dark to continue. [ 25 ] The next day Officer Jackson searched again all through Rupert Inlet to try to locate the traps, without success. He then expanded his search and located 20 traps with Mr.

Dyer's name on them in a location across from where he said they had been set. The traps were in Area 27. The traps were not in the area Mr. Dyer had pointed out to Officer Jackson while the two passed each other in their respective vessels, nor in the area shown on the navigational system. The traps were found approximately two to three kilometres from where Mr. Dyer said they would be. [ 26 ] Officer Jackson testified he was acting under the authority of s. 49 of the Fisheries Act . [ 27 ] Fisheries Officer Claire attended with Officer Jackson to the Swell Dancer vessel.

He testified that he and Officer Jackson were acting under the authority of the Fisheries Act to do a compliance check of the Swell Dancer . He testified that only the Quatsino First Nation are permitted to fish for food in Rupert Arm, and that the Quatsino did not permit First Nations people other than the Quatsino to fish in that area. Mr. Wilson was a Cape Mudge First Nations member. [ 28 ] Mr. Dyer identified himself as the captain of the vessel.

Officer Claire explained to the court that the role of the captain or skipper was being the person in charge of the vessel, knowing the areas in which to fish, being safe, and knowing the rules and regulations. He corroborates the sequence of events as narrated by Officer Jackson. Officer Claire’s evidence does not add or detract from the arguments of either counsel on this voir dire , so I will not summarize his evidence further. [ 29 ] I have reviewed the relevant legislation that was referred to by counsel; that is, specifically, ss. 49, 51 and 61 of the Fisheries Act : Inspection 49.

(1) Subject to subsection (2), for the purpose of ensuring compliance with this Act and the regulations, a fishery officer or fishery guardian may enter and inspect any place, including any premises, vessel or vehicle, in which the officer or guardian believes on reasonable grounds there is any work or undertaking or any fish or other thing in respect of which this Act or the regulations apply and may o (

a) open any container that the officer or guardian believes on reasonable grounds contains any fish or other thing in respect of which this Act or the regulations apply; o (

b) examine any fish or other thing that the officer or guardian finds and take samples of it; o (

c) conduct any tests or analyses and take any measurements; and o (

d) require any person to produce for examination or copying any records, books of account or other documents that the officer or guardian believes on reasonable grounds contain information that is relevant to the administration of this Act or the regulations. Operation of data processing systems and copying equipment

(1.1) In carrying out an inspection of a place under subsection (1), a fishery officer or fishery guardian may, o (

a) use or cause to be used any data processing system at the place to examine any data contained in or available to the data processing system; o (

b) reproduce any record or cause it to be reproduced from the data in the form of a print-out or other intelligible output and remove the print-out or other output for examination or copying; and o (

c) use or cause to be used any copying equipment at the place to make copies of any record, book of account or other document. Duty to assist

(1.2) The owner or person in charge of a place that is inspected by a fishery officer or fishery guardian under subsection (1) and every person found in the place shall o (

a) give the officer or guardian all reasonable assistance to enable the officer or guardian to carry out the inspection and exercise any power conferred by this section; and o (

b) provide the officer or guardian with any information relevant to the administration of this Act or the regulations that the officer or guardian may reasonably require. Disposition of samples

(1.3) A fishery officer or fishery guardian who takes a sample under paragraph (1)(

b) may dispose of it in any manner that the officer or guardian considers appropriate. Warrant required to enter dwelling-house

(2) Where any place, premises, vessel or vehicle referred to in subsection (1) is a dwelling-house, a fishery officer or fishery guardian

may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (3). Authority to issue warrant

(3) Where on ex parte application a justice of the peace is satisfied by information on oath o (

a) that the conditions for entry described in subsection (1) exist in relation to a dwelling-house, o (

b) that entry to the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and o (

c) that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused, the justice of the peace may issue a warrant under his hand authorizing the fishery officer or fishery guardian named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant. (4) [Repealed, 1991, c. 1, s. 13] R.S.C. 1985, c. F-14, s. 49 ; R.S.C. 1985, c. 31 (1st Supp.), s. 35; S.C. 1991, c. 1, s. 13. Seizure of fishing vessel, etc. 51.

A fishery officer or fishery guardian may seize any fishing vessel, vehicle, fish or other thing that the officer or guardian believes on reasonable grounds was obtained by or used in the commission of an offence under this Act or will afford evidence of an offence under this Act, including any fish that the officer or guardian believes on reasonable grounds o (

a) was caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations; or o (

b) has been intermixed with fish referred to in paragraph (a). R.S.C. 1985, c. F-14, s. 51 ; S.C. 1991, c. 1, s. 15. Persons who may be required to provide information 61.

(1) The following persons may be required under this Act to provide information or to keep records, books of account or other documents: o (

a) any person who engages in fishing; o (

b) any person who purchases fish for the purpose of resale; o (

c) any owner, operator or manager of an enterprise that catches, cultures, processes or transports fish; and o (

d) any agent or employee of a person referred to in paragraphs (

a) to (c). Information that may be required

(2) A person referred to in subsection (1) may be required to provide information or to keep records or other documents relating to any of the following matters: o (

a) the number, sex, size, weight, species, product form, value or other particulars of any fish caught, cultured, processed, transported, sold or purchased; o (

b) the time and place at which any fish was caught or landed and the person, enterprise or vessel by which the fish was caught or landed; o (

c) the time and place at which any fish was purchased and the person, enterprise or vessel from which the fish was purchased; o (

d) the vessels, gear and methods used and the number of persons employed for the purpose of catching fish; o (

e) the buildings, equipment, products and methods used and the number of persons employed for the purpose of culturing or processing fish; and o (

f) any other matter relating to the proper management and control of fisheries or the conservation and protection of fish. Duty to keep books

(3) A person referred to in subsection (1) shall keep any records, books of account or other documents that may be required by the regulations or by the terms and conditions of any lease or licence issued to the person under this Act and the records, books of account or other documents shall be kept in the manner and form and for the period prescribed by the regulations, lease or licence. Duty to provide information

(4) A person referred to in subsection (1) shall, on the request of any fishery officer or fishery guardian, provide the officer or guardian, or any authority designated by the officer or guardian, with any information relating to a matter mentioned in subsection (2) that the

officer or guardian may request. Idem

(5) A person referred to in subsection (1) shall, in accordance with the regulations and the terms and conditions of any lease or licenceissued to the person under this Act, provide a fishery officer, a fishery guardian or any authority designated in the regulations, lease orlicence with any information relating to a matter mentioned in subsection (2) that the regulations, lease or licence requires. R.S.C. 1985, c.

F-14, s. 61; S.C. 1991, c. 1, s. 18. [30] To sum these provisions up, pursuant to s. 49(1), a fisheries officer may enter any place, other than a dwelling, to conduct aninspection where he or she believes, on reasonable grounds, that there is any undertaking, or fish, in respect of which the Act applies. [31] Pursuant to s. 51, a fisheries officer has the authority to seize fish that he or she believes was obtained by the commission of anoffence, or is evidence of an offence. [32] Finally, ss. 49(1.2) and 61 compel fishers to assist a fisheries officer in those duties by providing information requested by theofficer. [33] For the purposes of the voir dire, only the statements made prior to Officer Jackson reading the Charter rights to Mr.

Dyer areat issue. The statements after that point will be an issue in the trial proper, because they form the actus reus of Count 4: making a falseor misleading statement to Officer Jackson. [34] The Crown pointed out, quite rightly, that where a statement forms the actus reus of the events, no voir dire is required to provevoluntariness, and s. 10 of the Charter is not engaged. [35] Defence counsel, Ms. Runyon, did not contend otherwise. For authority on this point see: R. v. Hanneson (1989), (ON CA), 49 C.C.C. (3d) 467 (Ont. C.A.) and R. v.

Ha, 2010 ONCA 433. [36] Accordingly, I will confine these reasons to the arguments advanced with respect to the admissibility of statements made andevidence gathered prior to the Charter rights being read. [37] Ms. Runyon's submission that Mr. Dyer's Charter rights were breached is based on the premise that he was detained from themoment the fisheries officers approached him. The fisheries officers did not have reasonable grounds to detain him based on the tip, atleast in its redacted form. Once detained, the fisheries officers had an obligation to advise Mr. Dyer of his s. 10 rights.

The fisheriesofficers, having no grounds to detain, then conducted a warrantless search of the vessel and located prawns. She submits that thesealleged infractions by the fisheries officers constitute breaches of s. 9 (arbitrary detention); s. 8 (unlawful search); and s. 10 (the right tobe advised of the reason for detention, and right to counsel). Mr. Dyer seeks exclusion of his statements and the prawns, pursuant to s.24(2). [38] Ms. Runyon relies on the analysis in R. v. Kooktook, 2006 NUCA 3, in which the court applied a version of the “dominantpurpose test” from R. v.

Jarvis, 2002 SCC 73 , [2002] 3 SCR 757, which was an income tax case. The court in Kooktookconcluded that the fisheries officers in that case were primarily engaged in an investigation of the accuseds, not a regulatory function,and therefore the accuseds’ Charter rights were engaged.

Ultimately, the court in Kooktook found that the fisheries officers breached theaccuseds’ s. 7 right to silence, and excluded the evidence. [39] The difficulty I have with this submission is that, setting aside how different the facts were in Kooktook, the “dominant purposetest” has been rejected as the correct approach for cases where fisheries officers are acting pursuant to the Fisheries Act. [40] As the Crown submits, since Jarvis, the Supreme Court of Canada in R. v. Nolet, 2010 SCC 24, and the B.C. Court of Appeal inR. v. Rice, 2009 BCCA 569, and R. v.

Mission Western Developments, 2012 BCCA 167, a decision of Madam Justice Bennett inChambers, have confirmed that a different approach should be taken to assessing allegations of breaches of Charter rights in a regulatorycontext. [41] In Mission Western, Madam Justice Bennett affirmed the proper approach in the context of a fisheries case at paragraph 37: 37 Justice Binnie [in Nolet] began his analysis by noting that “[t]he statutory authority for the search and the reasonableness of itsexercise are two distinct issues.” He went on to hold that in considering whether a search authorized by a regulatory provision hasviolated s. 8, “the question is not ‘determining which purpose is predominate or subordinate’.

As long as there is a continuing regulatorypurpose on which to ground the exercise of the regulatory power, the issue is whether the officer’s search ... infringed the reasonableexpectations of privacy of the [accused].” [42] In short, Madam Justice Bennett, like Mr.

Justice Binnie, specifically rejected an analysis such as that followed in Kooktook:that the court should determine whether the purpose of the fisheries officers' actions was a regulatory inspection or an investigation withpenal consequences. [43] Madam Justice Bennett emphasized this point further at paragraph 40: 40 … Both Nolet and the present case take place in a wholly different context [than in Jarvis].

Like the inspection in Nolet, the DFOemployees’ actions always took place, broadly speaking, in a “penal” or “adversarial” context, in the sense that s. 49(1) of the FisheriesAct grants powers of entrance and inspection “for the purpose of ensuring compliance with this Act and the regulations”. Ultimately, theproper question for consideration, as Binnie J. held in Nolet, is whether the officers’ regulatory inspection powers were exercisedreasonably in the totality of the circumstances.

[44] Ms. Runyon further submits that even applying the approach from Nolet and Mission Western Developments should result in afinding of Charter breaches. She submits that in this context, the fisheries officers were specifically targeting the Swell Dancer, basedon a tip, which, as redacted, forms sparse grounds for their actions. This was not a random stop, nor did it start as a regulatoryinspection. Rather it was an investigation from the outset with penal consequences, and therefore the Charter protections should apply. [45] I disagree.

If this argument were to succeed, the result would be that fisheries officers could not exercise their regulatorypowers any time they received information about fisheries offences. They would be limited to random checks. There is nothing in thelegislation, or the case law, to suggest that they should be so limited.

It would be an absurd result if fisheries officers could exercisetheir powers pursuant to s. 49 of the Fisheries Act where they had no information about possible violations, but could not do so wherethey received information about possible violations. [46] Fisheries officers are in a different position than a police officer acting on an unsubstantiated tip. They are operating within aregulatory scheme which grants them powers beyond those of police officers who approach a citizen, or conduct a motor vehicle stopbased on a mere hunch. Mr.

Dyer, and others who choose to fish, appreciate that by engaging in this activity they are subject to beingasked questions, and having their vessels searched, in order to enjoy the benefits of fishing. [47] In Mission Western, Madam Justice Bennett quotes from the Prince Edward Island Court of Appeal, in R. v. King, 2009 PECA9, on this point, with approval, at paragraph 30 of her judgment. She quoted from paragraph 40 of the King decision, but paragraph 39 isalso instructive: 39 In R. v.

Wilcox, supra Cromwell J. also stated, at para. 107, that an important component of a contextual analysis of all thecircumstances of each case is whether the legislation from which the powers of the officers are derived, is regulatory or criminal.

As theCourt of Appeal in that case also had under consideration an alleged violation of the Fisheries Act, Cromwell J. concluded thatthe Act was regulatory because its objectives are the conservation and management of the fishery. 40 There is a much reduced expectation of personal privacy when inspection powers are exercised upon an individual participatingin a highly regulated endeavor like the fishery.

In a regulated environment, the individual’s privacy interests must give way, morequickly than in a criminal or quasi-criminal environment, to the need for broader powers of search and seizure. [48] I note that the cases I have referred to up to this point address searches rather than statements. [49] Ms. Runyon submits that statements ought to be considered differently than physical evidence since Mr.

Dyer was compelled toincriminate himself. [50] In my view, the same principles apply to statements as to searches, since fishers are required to comply with requests byfisheries officers for information, just as they are required to permit searches of their vessels. [51] Authority for my conclusion comes from R. v. Rice, 2009 BCCA 569. Rice involved a conservation officer acting pursuant to s.95 of the Provincial Wildlife Act, which empowers officers in a similar manner to the sections of the Fisheries Act which I have referredto above.

Section 95 at the time of the Rice decision read: 95(1) An officer may, for the purposes of this Act, stop a motor vehicle, private or chartered aircraft or boat or other vehicle to determinewhether or not the occupants of the vehicle have been hunting, trapping or angling, and to obtain information about wildlife or game fishpossessed by them. [52] The conservation officer pulled over a vehicle, determined the occupants had shot a moose, and asked, "Who shot it?" Theaccused, Mr. Rice, replied that he did. [53] The B.C. Court of Appeal ruled that there was no violation of ss. 7 or 10(b), and that this statement was admissible against Mr.Rice. The court reached this conclusion even though

(1) Mr. Rice was detained at the time, and (2) the conservation officer hadreasonable grounds to arrest him prior to asking the question. Important to the court's analysis was the regulatory context of theinteraction between the officer and the accused.

In this respect the court stated, at paragraph 26: 26 However, in my view, this appeal does not turn on the question of whether the conservation officer had reasonable and probablegrounds to believe an offense had been committed before he asked the question, “Who shot it?” Rather, this appeal turns on the questionof whether in the context of the enforcement of hunter regulations, statutorily compelled self-incriminatory answers given without thebenefit of a s. 10(

b) Charter warning, even where the officer had reasonable and probable grounds to believe an offence had beencommitted, are nevertheless admissible evidence. [54] The court in Rice, as in Mission Western, noted that the Charter applies differently to cases in the regulatory, as opposed to thecriminal, context at paragraph 66 and 71: 66 In Fitzpatrick at para. 30, La Forest J. cited Cory J. in R. v.

Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R.154 at 226, distinguishing the application of Charter rights in criminal cases from regulatory cases: Cory J. held that “a Charter right may have different scope and implications in a regulatory context than in a truly criminal one”, and that“constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences”. 71 …

Section 95 of the Wildlife Act is a minimally intrusive means by which effective compliance with the Wildlife Act can bemonitored. After all, a hunter is aware of the fact he may be detained, so to speak, for a s. 95 hunter check and must be taken to haveconsented to such a process by his participation in the licensed activity: [And there is reference to] Jarvis at para. 65. [55] In Rice the court referred to the Supreme Court of Canada's decision in R. v. Fitzpatrick, (SCC), [1995] 4S.C.R. 154, which was a Fisheries Act case, in which the court ruled that the accused’s fishing logs and hail reports were admissible.

The B.C. Court of Appeal quoted, with approval, from Fitzpatrick , at paragraph 30 of Rice : 30 At para. 42, La Forest J. held that a fisherman could not complain about the statutory self-reporting requirement because he voluntarily participated in the regulated activity: [42] Surely it defies common sense to argue that the state, in seeking to regulate the commercial fishery by attaching certain conditions to a fishing licence, is coercing an individual to furnish information against himself.

Quite the opposite in fact is true; the individual is furnishing information that is meant to benefit him or her, through proper and fair distribution of scarce fishing resources. Just because this information may later be used in an adversarial proceeding, when the state seeks to enforce the restrictions necessary to accomplish its regulatory objectives, does not mean that the state is guilty of coercing the individual to incriminate himself. The state required certain information to be provided, and the individual voluntarily assumed the obligation to do so in deciding to become a fisher in the first place.

It ill lies in the mouth of someone who knowingly assumes an obligation for a beneficial purpose to argue later that this obligation has the effect of denying him his rights. [Emphasis in Rice ] [ 56 ] The accused in Rice argued that his situation was different from that in Fitzpatrick , because he was compelled to answer questions posed to him in an investigation, as opposed to producing documents which had been previously prepared by Mr. Fitzpatrick pursuant to the Fisheries Act regulation. [ 57 ] The B.C. Court of Appeal in Rice rejected this distinction.

The court noted that s. 95 of the Wildlife Act entitled the conservation officer to request the same information that Mr. Rice was required to provide under the compulsory reporting

section (see paragraph 60 of Rice). [ 58 ] The same can be said for Mr. Dyer: he was required to produce the requested information, pursuant to both ss. 49(1.2) and 61 of the Fisheries Act . [ 59 ] In reaching its conclusion that Mr.

Rice's statement was admissible, the court in Rice assessed four factors set out in Fitzpatrick . [ 60 ] The four factors the court considered, at paragraphs 34 and 61 to 64 of Rice , were: 1. existence of coercion; 2. existence of an adversarial relationship between the state and the accused; 3. the risk of unreliable confessions in the statutorily compelled statement; and 4. whether the use of the statement would increase the likelihood of abusive conduct by the state. [ 61 ] The court in Rice noted that Mr.

Justice La Forest had specifically found, at paragraph 42 of Fitzpatrick , that it was not coercive to require a person to provide information as part of a regulatory scheme under the Fisheries Act . [ 62 ] Regarding the existence of an adversarial relationship, the court in Mission Western pointed out that there is always an adversarial component to the relationship, so the court must focus, instead, on whether the officers' regulatory inspection powers were exercised reasonably in the totality of the circumstances. [ 63 ] The questions posed by Officer Jackson related to his permit, where the fishing occurred, what gear he used, and what fish Mr.

Dyer caught. All of these questions were clearly within the parameters of ss. 49 and 61 of the Fisheries Act . [ 64 ] Addressing the third factor, there was no suggestion that the statements made by Mr. Dyer are false confessions. As was stated in Rice , in the context of game checks in the wilderness, it is “highly improbable” that a check such as this would result in a false confession. [ 65 ] Concluding with the fourth factor, the court in Rice said, at paragraph 64 : 64 The fourth factor concerns the potential for abusive conduct by the state.

It cannot be abusive for the state to prosecute illegal hunting on the basis of true reports that hunters are required to complete as a condition of their voluntary participation in hunting. The same can be said for fishers who participate in fishing. [ 66 ] In conclusion, in this case the fisheries officers' regulatory inspection powers were exercised reasonably in the totality of the circumstances with respect to their search of the vessel, seizure of the prawns, and their questions of Mr. Dyer. Accordingly, the conduct of the fisheries officers in this case did not breach the Charter rights of Mr.

Dyer, specifically ss. 7, 8, 9, 10(

a) or (b). The statements made by him prior to his Charter warnings and the evidence of the prawns are admissible in the trial. (RULING ON VOIR DIRE CONCLUDED)