R. v. DP World Prince Rupert Inc., 2019 BCPC 302

Citation: R. v. DP World Prince Rupert Inc. 2019 BCPC 302 Date: 20191104 File No: 29850-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DP WORLD PRINCE RUPERT INC., PRINCE RUPERT PORT AUTHORITY, FRASER RIVER PILE & DREDGE (GP) INC., and BEL PACIFIC EXCAVATING & SHORING LIMITED PARTNERSHIP RULING ON THE APPLICATION OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Federal Crown: A. Switzer Counsel for the Attorney General on behalf of the Department of Fisheries and Oceans Canada: J. Katz Counsel for the Defendant DP World Prince Rupert Inc.: G.

Cameron Counsel for the Defendant Prince Rupert Port Authority: R. Bernard Counsel for the Defendant Fraser River Pile & Dredge (GP) Inc.: R. Cleary Counsel for the Defendant Bel Pacific Excavating & Shoring Limited Partnership: D. Rossi, J. Choi Place of Hearing: Prince Rupert , B.C. Dates of Hearing: October 2, 3, 2019 Date of Judgment: November 4, 2019 I. Introduction [ 1 ] In June 2014, following a lengthy environmental assessment process, the Prince Rupert Port Authority (“PRPA”), was poised to commence work on the initial stage of its Fairview Terminal Phase II Expansion Project (the “Project”).

The work included marine dredging, the significant infilling of intertidal and subtidal habitat, as well as the construction of a bund wall (the “Work”). Knowing that the Work was likely to result in serious harm to fish, PRPA applied for and obtained approval from DFO in the form of an Authorization under s. 35(2) (

b) of the Fisheries Act , R.S.C. 1985, c. F-14 .

[ 2 ] The defendants Bel Pacific Excavating & Shoring Limited Partnership (“Bel Pacific”) and Fraser River Pile & Dredge (GP) Inc. (“FRPD”) were largely responsible for carrying out the Work. FRPD and Bel Pacific had contracted to do the Work with the defendant, DP World Prince Rupert Inc. (“DP World”), a successor to Maher Terminals of Canada Corp. (“Maher”), the operator of the Fairview Terminal (the “Terminal”) under a lease agreement with PRPA, when DFO granted the Authorization. As a private partner in the Project, Maher had responsibility for the final design and construction of the expanded Terminal.

All of the defendants, PRPA included, were bound by the conditions of the Authorization. [ 3 ] In the fall of 2015, DFO Officers conducted an investigation into the Work that was, by then, well underway. Several DFO Officers gave sworn evidence in support of an application for a search warrant that on a number of occasions they found stranded and dead fish in the infill side of the bund wall at low tide. The Officers also swore that the defendants did not seem to have a fish salvage strategy. DFO considered both events to be contrary to the Authorization.

Following the seizure of documents, DFO took the position that the defendants had breached a number of other provisions of the Fisheries Act and/or the Authorization in carrying out the Work. [ 4 ] As a result of DFO’s investigation into the Work, each of the defendants are charged with ten counts of various offences under the Fisheries Act .

What is most important for the present purposes is Count 1, which charges that “in carrying out work in the Marine Environment at or near Prince Rupert, British Columbia, between November 30, 2014 and November 1, 2015, the defendants caused serious harm to fish contrary to s. 35(1) of the Fisheries Act .” Namely, the defendants caused the death of fish. Other charges include that while carrying out the Work, the defendants failed to comply with various conditions of the Authorization regarding sediment and erosion control, and fish salvage operations.

Additionally, the Crown charges that the defendants failed to comply with statutory requirements to notify DFO of an occurrence resulting in serious harm to fish. [ 5 ] The wording of the Authorization is central to Count 1, and to other aspects of the case for the defence.

The relevant portion reads as follows: The serious harm to fish likely to result from the proposed Work(s), undertaking(s), or activity(ies), and covered by this authorization includes Destruction of 11,300 m 2 of intertidal and 19,000 m 2 of subtidal habitats, that currently provides migratory, rearing and refuge habitats utilized by fish that contribute to commercial, recreational and Aboriginal fisheries. [ 6 ] The defendants submit that although the Authorization does not explicitly allow for the killing of fish, it does not set out an exhaustive list of the kinds of harm to fish that are likely to result from the Work.

They submit it must be obvious by the sheer volume and scope of the Work referred to in the Authorization that the death of fish would necessarily result. They submit further, and in any event, that information gleaned from discussions, studies and reports involving the Project over many years during which the likelihood of fish mortality was considered, would greatly assist in the

interpretation of the Authorization. [ 7 ] The defendants also submit that during the lengthy environmental assessment of the proposed Project, DFO personnel participated in technical working groups and other processes that considered the Project design as well as alternative designs. The likelihood of fish mortality would have been considered in the design discussions, and was likely a known result of the final approved Project, including the Work. The defendants all submit that such documents would be highly relevant not only to the

interpretation of the Authorization, but also with respect to the defence of due diligence. [ 8 ] Finally, each of the defendants have provided the Crown with notice of their applications to exclude evidence obtained pursuant to the execution of two search warrants at property owned and/or operated by several of them. The defendants submit the

interpretation of the Authorization has some bearing on their application for Charter relief. [ 9 ] In the result, each of the defendants have brought an application for the disclosure of a significant body of documents or records in possession of DFO relating to the Project, including the environmental assessment process and the granting of the Authorization. The defendants FRPD and Bel Pacific have brought a joint application for disclosure of documents. They are joined by PRPA and DP World, each of whom have filed similar applications for disclosure, with some slight, immaterial, variation in language.

For ease of reference, and given that Ms. Cleary’s submissions on behalf of FRPD and Bel Pacific were adopted by all of the defendants, I will utilize the wording of FRPD and Bel Pacific’s application in these reasons.

For the remainder of these reasons I will also refer to the defendants collectively as the “Applicants.” [ 10 ] In this application for disclosure the Applicants seek: An order for inspection and production of all records from March 1, 2008 through December 31, 2013 in the possession of the Department of Fisheries and Oceans Canada ("DFO") relating the Fairview Terminal Phase II - Northern Expansion (the "Project") and the federal environment assessment process under the Canadian Environment Assessment Act , 1992, S.C. 1992, c 37 , including, but not limited to: (

a) records considered, produced or relied upon in the determination regarding the manner in which their duties and functions in the environmental assessment process would be performed; (

b) records considered, produced or relied upon in making the project scoping decision; (

c) records considered, produced or relied upon in the determination of factors to be taken into consideration in the project's environmental assessment and/or the project's terms of reference; (

d) records considered, produced or relied upon in preparation of the Comprehensive Study Report; (

e) records considered, produced or relied upon in making the Course of Action Decision; and (

f) records considered, produced or relied upon in ensuring that mitigation measures were implemented in taking a Course of

Action. An order for inspection and production of, from January 1, 2014, through to November 5, 2014, all records in the possession of the DFOrelating to the Project and including: (

a) The Fisheries Act Authorization #14-HPAC-00577, including the preapplication, application and post-application process; (

b) Maher Terminals of Canada Corp., Maher Terminals Inc., Dubai Ports World, DP World, Prince Rupert Port Authority, FRPD-Bel Gateway Joint Venture and/or FRPD-Bel Joint Venture. [11] With respect to the requests, the Applicants seek records, which include but are not limited to the following (including draftswhere they exist): (

a) memoranda, and including briefing memoranda; (

b) reports and articles, including published articles; (

c) policies; (

d) notes, including notes to file, investigatory notes, meeting notes and briefing notes; (

e) presentations; (

f) correspondence, including records of telephone calls, e-mails and letters, among or between Department staff, among orbetween Department staff and individuals external to the Department; (

g) calendar records, including, but not limited to calendar records regarding meetings among or between Department staff, amongor between Department staff and external individuals, including Maher Terminals of Canada Corp., Maher Terminals Inc., Dubai PortsWorld, DP World, Prince Rupert Port Authority, FRPD-Bel Gateway Joint Venture and/or FRPD-Bel Joint Venture; (

h) inspection records; (

i) authorizations, permits, or orders issued under the Fisheries Act; (

j) photographs and video; and (

k) maps, diagrams and charts. II. The Issue [12] All of the parties agree that the documents sought by the Applicants are not first party documents subject to the disclosure rulein R. v. Stinchcombe, (SCC), [1995] 1 S.C.R. 754. They are not, as the Court held in R. v. McNeil, [2009] SCC 3, atpara 22, “material commonly referred to as the ‘fruits of the investigation’ in the possession or control of the prosecuting Crown.”Rather, all agree that these are third party documents and therefore subject to the test for disclosure set out in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411. [13] R. v.

O’Connor sets out a two-stage test for the production of third party documents. In the first stage, the Court must besatisfied that the documents sought are likely relevant to an issue in the trial. If so, the documents that are the subject of a productionorder must be examined to determine if there are issues such as privilege or privacy that could, on balance, limit production. [14] As this is the first stage of the Applicant’s O’Connor application, the issue is whether the documents sought are likely relevantto an issue in the trial of this matter. III.

Position of the Federal Crown [15] The Federal Crown is represented on this application by both counsel for the Director of Public Prosecutions (the “Crown”),and counsel for the Attorney General of Canada (the “Attorney General”). Each oppose the application, but for slightly different reasons.Mr. Katz, counsel for the Attorney General, appearing on behalf of DFO on this application, submits that to the extent documents otherthan the Authorization might assist in its

interpretation, the Applicants now possess all they need. In particular, the Attorney Generalpoints to a document, disclosed by the Crown, entitled the Comprehensive Study Report (the “CSR”). Mr. Katz submits that ifreferences outside of the Authorization to the potential for fish mortality caused by the Work are needed, the CSR provides ample proof. [16] As its title suggests, the CSR constitutes a comprehensive examination of the anticipated impact of what was then the proposedProject.

The CSR analyses myriad potential impacts of the proposed Project on aboriginal persons, heritage values, human health andsafety, wildlife and wildlife habitat, the marine environment, light, and so forth. Of interest in this case is that part of the CSR concernedwith impacts of the Project on the marine environment, including marine life. As Mr. Katz submits, the CSR does contain numerousreferences to fish mortality in this regard. [17] The Attorney General submits that this compendious document, already in the possession of the Applicants, satisfies, for thepresent at least, any requirement for disclosure. Mr.

Katz submits that if during cross-examination, for example, it becomes apparent thatmore documents are needed, the matter of disclosure can then be re-visited. [18] The Crown submits that the application for disclosure should be dismissed entirely on the ground that none of the documentssought are relevant to the

interpretation of the Authorization. Crown points to affidavit evidence that in approving the Authorization,DFO regulatory officials confined themselves to a review of the CSR. The Crown submits that in interpreting the intent of the

Authorization, the Applicants are entitled to no more than those materials reviewed by DFO acting in its regulatory capacity. Whatever information DFO garnered in its role in the environmental assessment is, in this submission, irrelevant. [ 19 ] In either event, counsel for the Crown and the Attorney General both agree that the sheer volume of documents sought cannot satisfy the O’Connor test for disclosure. The objection, at least at this stage, is not grounded on the sheer volume of the request, though the Attorney General does allude to this, but on the very nature of the documents requested.

Given DFO’s role and the scope of the CSR, other reports, consultations, studies, and meetings involving the Project, it is clear that many of the documents sought would have nothing to do with impacts on the marine environment. Both counsel submit that to the extent the Applicants seek disclosure of such a broad array of documents to determine if some may relate to impacts on the marine environment, the exercise is tantamount to a fishing expedition. IV. Background [ 20 ] The documents sought in this case date as far back as March 11, 2008.

The Applicants submit that in or around this date, PRPA had commenced the process of approval for its proposed Project. In his Affidavit, sworn September 4, 2019, Byron Nutton, of DFO, avers that on March 11, 2008, an environmental assessment of the Project commenced pursuant to the then Canadian Environmental Assessment Act S.C. 1992, c. 37 (“ CEAA 1992”, repealed and replaced by the Canadian Environmental Assessment Act S.C. 2012, c. 19 s. 52 “ CEAA 2012”). [ 21 ] At the material time, the proponents of the Project were PRPA and the Canadian National Railway Company (“CN”).

PRPA, as a federal Crown agent, is responsible for the oversight of all commercial port facilities in Prince Rupert. In or around 2006, PRPA and CN submitted a proposed plan for the expansion of the Terminal.

As one report in evidence describes it, the purpose was to expand the Terminal “to capitalize on the increase in containerization as a shipping method worldwide.” Prince Rupert’s road and rail connections to the rest of North America made the proposal to expand the Terminal, and quadruple its capacity to process shipping containers, attractive. [ 22 ] On the PRPA side at least, the proposed Project involved significant dredging and infilling of tidal and intertidal marine habitats. In its first stage, the Project called for the construction of a containment berm to support the infilling.

The expected environmental impact of the Project was such that PRPA was statutorily obligated to subject its proposal to an environmental assessment process. Other federal environmental legislation applied such that other federal authorities were also statutorily bound to conduct an environmental assessment process with respect to the proposed Project. [ 23 ] The regulatory landscape governing the assessment process in this case is somewhat convoluted given the number of statutory actors. First, as a Crown agent, PRPA has various regulatory and statutory responsibilities.

As a Canadian Port Authority under the Canada Marine Act, the PRPA is obligated to comply with the Canada Port Authority Environmental Assessment Regulations (the “ CPAEAR ”). In particular, s. 5(1)(a, b,

c) of the CPAEAR obligated PRPA to conduct an environmental assessment of its proposed Project. [ 24 ] A federal environmental assessment was also mandated by s. 5(1) of the CPAEAR as DFO, Environment Canada and the Canadian Transportation Agency (the “CTA”) all determined that certain components of the Project would likely require an authorization, permit or other statutory approval. At the material time, the CEAA 1992 designated any federal authority that proposed to issue a permit or approval as a “Responsible Authority” (“RA”).

The RA was responsible to ensure that a federal environmental assessment was conducted before any such permit or approval could be considered. [ 25 ] In this instance, as the authors of the CSR write at page 30, it was acknowledged that the Project could not proceed without approval from DFO pursuant to s. 35(2) of the Fisheries Act , then in force, authorizing the harmful alteration, disruption or destruction of fish habitat.

As such, DFO identified itself as an RA for the purposes of the proposed Project, as did Environment Canada, for obvious reasons, and the CTA, largely because of rail plans proposed by CN. [ 26 ] The RAs, PRPA and CN were joined by other participants in the Project, including all of the other defendants herein (though not, in the case of the other defendants, all at the same time). As previously noted, DP World assumed the operation of the Terminal and Maher’s role in the Project.

DP World brought in FRPD and Bel Pacific to carry out the Work, after the environmental assessment process had completed. [ 27 ] Another participant that figures largely in the environmental assessment process, and the subsequent issuance of the Authorization, is Stantec Consulting (“Stantec”). Shortly before the CSR process began, PRPA delegated its functions and duties in respect of the environmental review process to Stantec as it was authorized to do by s. 9 of the CPAEAR .

In turn, Stantec worked alongside the RAs, CN, PRPA, and others throughout the environmental assessment process. [ 28 ] One of the first issues for the federal statutory actors was to determine what sort of environmental review process would best address the proposed Project. Ultimately, the RAs and PRPA decided on a comprehensive study report.

This approach was formalized on November 2, 2009, when the federal Minister of Environment accepted the recommendation of the RAs and PRPA, and directed that a CSR be undertaken to consider the likely environmental impacts of the proposed Project. [ 29 ] The recommendation to proceed by way of a CSR is discussed in detail in a report titled the “Track Report”, attached to the affidavit of DFO officer, Byron Nutton.

At page 5 of the Track Report, for example, DFO acknowledges that it was “considering the authorization of works or undertakings with the potential for the harmful alternation, disruption or destruction of fish habitat (HADD) pursuant to s. 35(2) of the Fisheries Act .” It added that “Specific Project triggers include: infilling of approximately 16 hectares of marine environment to construct the wharf and terminal….” [ 30 ] The CSR took about four and a half years to complete. The RAs produced a written report, dated September 2012.

The CSR is, as all the parties agree, a compendious document that details the results of the lengthy environmental assessment process. The assessment involved consideration of the impact of the proposed Project on air quality, noise and vibration, light, vegetation resources, wildlife and wildlife habitat, avifauna, the freshwater environment, the marine environment, social-economic conditions, human health

and safety, archaeological and heritage resources, current traditional use by Aboriginal persons, country foods, effects on the environment and accidents and malfunctions. [ 31 ] Other matters examined include cumulative environmental effects of the proposed Project, and follow up programs and monitoring. [ 32 ] The authors of the CSR conclude as follows: Pursuant to the requirements of the CEAA , the RAs (DFO, TC (sic), CTA) along with PRPA have determined that, on the basis of the comprehensive study, and taking into account the CSR and the implementation of the proposed mitigation and commitments, the Fairview Terminal Phase II Expansion Project, including Kaien siding, is not likely to cause significant adverse environmental effects for any of the VECs.

A positive effect is predicted on socio-economic conditions due to the development of port lands according to their planned use, as well as predicted local and regional economic benefits from the expanded cargo handling and shipping facilities and increase (sic) level of commercial activity. [ 33 ] On January 25, 2013, the federal Minister of the Environment issued an Environmental Assessment Decision Statement.

After reviewing the CSR, and taking into account public comments, the Minister stated his opinion that the Project, taking into account mitigation measures, is not likely to cause significant adverse environmental effects. [ 34 ] Whereas the RAs participated in the environmental assessment process as a prerequisite to issuing any permits or approvals, none had the authority to do so until the Minister rendered his opinion.

Having concluded that the Project was not likely to cause significant adverse environmental effects, the Minister referred the Project back to the RAs for appropriate action under s. 37 of the CEAA 2012. [ 35 ] On March 6, 2013, having had the matter referred back to them by the Minister, the RAs determined that they “could exercise any power or perform any duty or function with respect to the Project…” This was because “after taking into consideration the comprehensive study report and taking into account the implementation of appropriate mitigation measures, the authorities are of the opinion that the project is not likely to cause significant adverse environmental effects.” [ 36 ] As DFO acknowledged at the outset of the environmental assessment process, it identified itself as an RA for the proposed Project because the Project could not proceed unless DFO issued an Authorization pursuant to s. 35(2) of the Fisheries Act .

Following the submission of the CSR to the Minister, the Minister’s approval, and the RAs subsequent determination that they now had authority to issue permits and approvals pursuant to s. 37 of the CEAA 2012, DFO was finally in a position to consider PRPA’s application for an Authorization. [ 37 ] In June 2014, PRPA submitted an application for an Authorization pursuant to what was then s. 35(2) of the Fisheries Act for approval to carry on with the proposed Work.

PRPA also submitted an Application Report and Fish Habitat Compensation Plan, both of which were authored and submitted by Stantec. [ 38 ] As the author of the Application report writes, the submission of the Application was immediately preceded by communication with DFO on May 12 and 27, 2014.

The Application is submitted, the author writes, for PRPA, “in relation to serious harm to fish that will be incurred specifically as a result of the Northern Expansion of Fairview Terminal.” [ 39 ] Naturally enough, the Application references the CSR, and acknowledges the Minister’s statement that the Project is not likely to cause significant environmental effects.

In setting out the proposed construction schedule, the author writes that “Construction of the Northern Expansion includes the infilling (reclamation) of intertidal and subtidal habitat, revetment (perimeter berm) construction, dredging of the berth pocket in front of the north end of the existing terminal, and construction of a concrete abutment.” [ 40 ] At page 3 of the Application, the author acknowledges that construction will result in serious harm to fish habitat, and Table 3-1 sets out the area of serious harm in both the intertidal and subtidal substrates.

In total, the serious harm quantification adds up to 30,000 m 2 . There is a discussion in the Application of habitat offsetting with the goal of fulfilling DFO’s fisheries protection policy. Finally, the author speaks to creating habitat to offset the harms, including the creation of a significant area of kelp-reef habitat. [ 41 ] The Application is accompanied by a more detailed Fish Habitat Compensation Plan which again speaks to Project components that will affect marine fish habitats during both Stage 1 (Northern Expansion) and Stage II (Southern Expansion).

At page 21 of this report, the author discusses what is entitled the “HADD QUANTIFICATION FOR MARINE FISH HABITAT.” The numbers here are slightly different than those given for the intertidal and subtidal substrates loss in the Application, but not so different as to appear wildly inaccurate. In any event, the author of the Application, and this Report, leaves no doubt that stage 1, the Northern Expansion, will impact fish habitat significantly. Neither this Report nor the Application makes specific mention of fish mortality. [ 42 ] DFO has generated a form entitled “Application Form for Paragraph 35(2) (

b) Fisheries Act Authorization (Normal Circumstances)” (the “Authorization Application Form”). This too forms part of PRPA’s application for the Authorization. [ 43 ]

Section 2 of this Authorization Application Form, titled “Checklist for Prescribed Information” states “[a]n applicant does not need to re-submit documents that have already been submitted to DFO for review.

An applicant may reference documents such as Environmental Impact Statements, technical supplements, etc. in their application but must provide the appropriate reference to any document cited, including the chapter, section, page reference and date of submission.” [ 44 ] In the column of DFO’s Authorization Application Form that reads “Description of Measures and Standards to Avoid or Mitigate Serious Harm to Fish”, the author refers to its Fish Habitat Conservation Plan, Mitigation Strategy Report and Information Request documents, August 2011 and 2012, and Sections 6.8.4, pages 110 to 113 and Table 1 of the Comprehensive Study Report. [ 45 ]

Section 6.8 of the CSR addresses the impact of the proposed Expansion Project on the “marine environment.” The marine environment is defined in the CSR as all life stages of fish and the habitat necessary to support marine life at the Project site. The report

goes further and states: As defined under the Fisheries Act , fish includes all life stages of fish, shellfish, crustaceans and marine mammals.

Fish habitat is defined as “spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly to carry out their life processes….This includes the physical (e.g., substrate, water temperature and water depth), biological (e.g., fish, benthic invertebrates, marine vegetation), and chemical (e.g., dissolved oxygen, nutrients) attributes of the Marine Environment that are required by these species. [ 46 ] The marine environment was selected by the authors of the CSR as a valuable environmental component (VEC) because of the direct interaction of the construction, operation and decommissioning of the Project with the marine environment.

At

section 6.8.3, the authors of the CSR note that during the environmental assessment process, the proponents, working group members and federal agencies all identified that one of the key issues concerning the potential environmental effects of the Project on the marine environment was direct mortality or physical injury. [ 47 ] At

section 6.8.3.4 the CSR authors write “Direct mortality or physical injury may occur during certain construction and operation activities associated with the Project. Direct mortality of marine benthos will occur within the LSA (Local Study Area, including the Project Footprint) and potentially at the disposal at sea site….” [ 48 ]

Section 6.8.4 of the CSR is entitled Mitigation. It is this section, from pages 110 to 113 of the CSR, which is referenced by the PRPA in DFO’s Authorization Application Form. The Applicants point specifically but not exclusively to the following mitigation commitments in this section. First, the Applicants’ point to the commitment that “[a]ll in-water construction activities that have the potential to cause fish mortality will be regulated under

Section 32 of the Fisheries Act ; the proponent will abide by any applicable permit requirements and conditions.” Second, the Applicants refer to the commitment that “Marine Works will be constructed in the dry, as tides and existing conditions permit (some areas are never dry).” And finally, to “Compliance with Legislation: all Project-related Works will be conducted in accordance with Section 36(3) of the Fisheries Act as well as conditions associated with authorization under Section 35(2) .” [ 49 ] By letter dated November 5, 2014, PRPA received notice that DFO had, pursuant to s. 35(2) (

b) of the Fisheries Act , authorized the carrying out of PRPA’s proposed Work, that results in serious harm to fish arising from the placement of fill material and rip-rap associated with the proposed northern expansion of the Fairview Container Terminal. Attached to the letter is the Authorization at issue. V. The Shifting Regulatory Environment [ 50 ] While the various reports, studies and applications leading up to the Authorization were being drafted and/or considered, the fisheries’ regulatory landscape was shifting.

In particular, the Applicants’ submit, while the environmental assessment process continued apace, the federal government set about amending the Fisheries Act and thus obscured, arguably, what exactly was authorized in the Authorization. [ 51 ] As the environmental assessment process got underway in or around March, 2008, s. 32 of the Fisheries Act then in force prohibited the destruction of fish by any means other than fishing except as authorized by the Minister or under regulation.

Section 35 of that Act prohibited any person from carrying on any work or undertaking that resulted in the harmful alteration, disruption or destruction of fish habitat, except unless the works are carried out under conditions authorized by the Minister or by regulation. [ 52 ]

Section 32 was replaced by s. 32(1) after the CSR was concluded. Section 32(1) prohibited the killing of fish by any means other than fishing, unless done as a result of carrying on a prescribed work, in accordance with prescribed conditions, or done in accordance with the regulations, or done as a result of doing anything that is authorized, otherwise permitted or required under the Fisheries Act . [ 53 ] In turn, s. 32(1) was replaced before the Authorization was issued by s. 35(1) of the Fisheries Act .

Section 35(1) , which remains in force, provides that no person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or aboriginal fishery, or to fish that support such a fishery.

Exceptions include if a person is carrying on a work, undertaking or activity that is authorized by the Minister and in accordance with those conditions. [ 54 ] Serious harm to fish is defined at s. 2(2) of the Fisheries Act as the death of fish or any permanent alteration to, or destruction of, fish habitat. [ 55 ] The Applicants, particularly DP World and Bel Pacific, submit that the changing regulatory landscape very likely was discussed by DFO personnel in both the CSR process, and as it approved the Authorization. The Applicants submit that documents detailing these discussions will assist in the

interpretation of the Authorization. VI. The Law [ 56 ] As noted earlier in these reasons, the Applicants agree (however reluctantly), based on the reasoning in R. v. McNeil , that their application must meet the test for disclosure in R . v. O’Connor . [ 57 ] As Justices Lamer and Sopinka (in the majority on this point) write at paras 15 to 18 of O’Connor , the general principle that an accused’s ability to access information necessary to make full answer and defence is constitutionally protected is as applicable where the information sought is in the hands of a third party, as it is under Stinchcombe .

The balancing is slightly different in that issues of third party privilege might arise. Even so, the Court acknowledges that the right to make full answer and defence may well prevail over privilege; “so important is the concern that a denial of disclosure might result in a miscarriage of justice.” [ 58 ] There are cases, referred to in this hearing by the Crown, reminding trial judges that they need not be wary of denying applications for disclosure. However, the general approach is that set out in O’Connor at para 18 where the Court writes that:

Canadian courts …have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, areluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. [59] The modified approach to disclosure of third party documents in O’Connor, designed to balance the competing interests,involves a shift in onus and a modification of the test for disclosure from that set out in Stinchcombe. When seeking third partydocuments an accused must satisfy the Court that the information sought is likely to be relevant.

It is, as the Court writes at para 19,simply an initial threshold to provide a basis for disclosure. It is an onus, the Applicants’ here emphasize, that can be satisfied bysubmissions of counsel. [60] In determining the meaning of likely relevance, the Court must be satisfied that that the information is logically probative to anissue at trial, or to the competence of a witness to testify. Still, as the Court writes at para 24 of O’Connor, the likely relevant threshold isnot intended to place an onerous burden on the accused; the evidence need not even be admissible.

Rather, the purpose for the impositionof this threshold onus is “simply a requirement to prevent the defence from engaging in “speculative, fanciful, disruptive, unmeritorious,obstructive and time-consuming requests for production.” [61] Even acknowledging, as the Court does in R. v. McNeil at paras 28 and 29, that the undue protraction of criminal proceedingsremains a pressing issue more than a decade after O’Connor, as it does to this day, courts are still reminded that the test for likelyrelevance cannot represent an onerous test for the accused to meet.

In my view, the burden described by the Court in McNeil is no moresignificant or onerous than that described in O’Connor. [62] The Crown relies on a number of authorities in support of its submission that this application for disclosure should be denied.First, the Crown relies on R. v. Cody, 2017 SCC 31, where at paras 30 to 38, the Court discusses the role trial judges play in preventingdelay. Reiterating their reasons in R. v.

Jordan, 2016 SCC 27, the Court writes at para 38 that the courts should not hesitate to summarilydismiss “applications and requests the moment it becomes apparent they are frivolous.” [63] Other cases referred to by Crown include R. v. Baker, 2017 BCSC 997. At issue in Baker is an application by Mr. Zaporoski (aco-accused charged with the first-degree murder of Mr. Reno), for disclosure of the whole of an RCMP investigative file into the murderof Mr. Maurice Seguin Jr., years earlier. Mr. Zaporoski argued that the file involving Mr. Seguin Jr. was relevant as it involved one ofhis co-accused, Mr. Baker. Mr.

Zaporoski submitted that a police officer told him Mr. Baker had gotten away with the murder of Mr.Seguin Jr. He submitted the investigative file into the death of Mr. Seguin Jr. would assist in his defence, certainly with respect to thecredibility of Mr. Baker. [64] The RCMP and the prosecuting Crown each opposed Mr. Zaporoski’s application. The Crown had provided Mr. Zaporoski withsome of the RCMP’s file materials in the Mr. Seguin Jr. investigation, which were composed of statements by Mr. Baker, as well as atranscript of the evidence given by Mr. Baker at a preliminary inquiry.

The RCMP submitted there, as Mr. Katz does here, that havingreceived that information, the applicant had all it needed to make full answer and defence. Overall, the RCMP and the Crown submittedthat Mr. Zaporoski had simple failed to demonstrate the materials sought were in any way logically connected to the question of thecredibility of Mr. Baker. In that regard, at para 25 of Baker, the Court quoted from the decision in R. v.

Sipes, 2011 BCSC 150, at para16 as follows: 16 While accused persons are not required "to demonstrate the specific use to which they might put information which they have notseen" (O'Connor, at para. 25), the mere assertion that the contents of the records sought may be relevant to the credibility of the witnessis not sufficient to justify production. In R. v. Batte (2000), (ON CA), 145 C.C.C. (3d) 449, Doherty J.A. explained atpara. 75: ... The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence orinformation" to justify that assertion.

In my view, an accused must be able to point to something in the record adduced on the motion thatsuggests that the records contain information which is not already available to the defence or has potential impeachment value. [65] The Crown relies on the passage cited above in support of its submission that there is no evidence in this case, as in Baker, tosupport the application for disclosure. To a large extent, the reasoning in Sipes, and Baker, both of which focus on the applicant’sevidentiary burden, rely on the reasoning in R. v.

Batte, (2000) (ON CA), 145 C.C.C. (3d) 449 – a case concerning,among other things, the relevance of the counselling records of a complainant alleging sexual assault by the accused. Even though thetrial judge in Batte found the records met the test of likely relevance, in the reasons on appeal, Justice Doherty writes at para 66 that inlight of the total absence of any indication of what the complainant spoke of with her counsellor, the request for production of those samerecords was speculative. At para 75, Justice Doherty writes that in determining likely relevance, a mere assertion of relevance isinsufficient.

Rather, an accused must “point to some case specific evidence or information to justify” the assertion of relevance.

Therewas, as Justice Doherty notes in Batte, no evidence or information upon which a trier of fact could conclude the records were likelyrelevant to the credibility of the complainant. [66] The Crown submits these and other authorities as support for the proposition that while the burden on the accused on adisclosure application is not intended to be onerous (bearing in mind the accused will have an imperfect understanding of the content ofthe documents he or she seeks), there is still a positive onus. It is one, the Crown submits, that is significant and one that requires anevidentiary basis. [67] In R. v.

Elkins, 2017 BCSC 2554, Justice Bowden, as he then was, considered an application for disclosure of certain RCMPmaterial known as PIRS (Police Information Retrieval System) and PRIME (Police Records Management Environment) records. InElkins, the accused sought the records with a view to undermining the credibility of two Crown witnesses. The accused argued, andappeared to have demonstrated, that the credibility of the two Crown witnesses would be an issue at trial.

What appears missing,however, from the case for production, is any evidence or information that the records sought contained any relevant informationregarding the witnesses. Though much of the decision is taken up with the question of the test for likely relevance in O’Connor, in theend the Court concluded the applicant had failed to establish any basis to show there was likely information in the records relating to thecredibility of the witnesses “on a particular material issue at trial.”

[68] A similar result was reached by Justice Fisher, as she then was, in R. v. Groves, 2011 BCSC 946. In Groves, Justice Fisherrefers to the burden on an accused seeking third party disclosure in the language used by Justice L’Heureux-Dube in O’Connor at para42, where she spoke of a significant burden. As in Elkins, the question for the Court was whether the accused had established that thedocuments he sought were likely relevant to his defence. Again, as in Elkins, the defence sought material in order to challenge thecredibility of certain witnesses.

The following passages from Groves at paras 29 to 31 frame the issue: 29 The defence says that the evidence in this case will raise the issues of identification, accident and self-defence and all of the materialsought is likely relevant to all three issues. Mr.

Claus submitted that information about a witness' history of drug use and mental healthissues may have a bearing on the ability of the witness to report what he or she observed, and information about violent acts that did notresult in charges, associations with other street people, witnessing street violence, refusing to cooperate and general street peopledynamics will be relevant to all issues as going to credibility. He referred me to R. v.

Scopelliti (1981), (ON CA), 34O.R. (2d) 524 (C.A.), for the proposition that, where self-defence is raised, evidence of a deceased victim's tendency toward violence isadmissible to show the probability that the deceased was the aggressor and to support evidence of the accused that he was attacked bythe deceased.

He suggests that the same principle can be applied to show the tendency of the street crowd for violence. 30 The Crown says that the likely relevance test does not include speculative assertions regarding credibility generally but requires thatthe material sought provide information relating to a witness' credibility on a specific and material issue. 31 This submission tracks the language used by L'Heureux-Dubé J. in O'Connor at para. 142, where she described the significance ofthe likely relevant burden on the accused: The burden on an accused to demonstrate likely relevance is a significant one.

For instance, it would be insufficient for the accused todemand production simply on the basis of a bare, unsupported assertion that the records might impact on "recent complaint" or the "kindof person" the witness is.

Similarly, the applicant cannot simply invoke credibility "at large", but must rather provide some basis to showthat there is likely to be information in the impugned records which would relate to the complainant's credibility on a particular, materialissue at trial. [69] It is evident upon review of this latter passage, as Justice Fisher summarizes at para 35 of Groves, that what is meant bysignificant is no more than that to establish relevance, for example in the matter of credibility, it is not enough for the applicant to simplystate that credibility will be an issue at trial.

Rather, an applicant must go further and establish some basis to show that there is likely tobe information in the records sought that would relate not only to credibility, but also to credibility on a particular, material issue at trial.This not only avoids the so-called fishing expeditions, it guards against unnecessary delay. [70] Other cases cited on this application by both the Crown, the Attorney General and the Applicants involve instances where thelikely relevant test is not met. These include R. v.

Gubbins, 2018 SCC 44, in which the Court held at para 57 that expert evidence wasnecessary to establish the relevance of the maintenance records of a breathalyzer machine. Apart from restating that onus on the accusedat the first stage of the O’Connor test is not onerous and intended only to prevent fishing expeditions, the reasoning in this case leadingto the results for both accused is entirely fact specific. [71] A result similar to the one in Gubbins was reached by the Court of Appeal in R. v. Jackson, 2015 ONCA 832.

There the Courtheld the applicant had failed to establish the likely relevance of various records and data associated with the Intoxilyzer machine used totest for his breath samples. The case is most useful for its discussion of the meaning of the words relevant and relevance at paras 119 to125 and I have considered that in my determination of this application. [72] In R. v. Saulter, 2011 N.J. No. 290 (P.C.) the accused was charged with fishing turbot in June 2009, during a closed time.

Hesought disclosure of DFO’s records relating to investigations of other individuals also fishing for turbot in or around the same time. Hesubmitted the information sought would relate to the actus reas of the offence, as well as to his defence of due diligence. In dismissingthe application, Judge Gorman held that the investigative files the applicant sought were “not of such a nature that on their face theywould assist him in relation to either issue.” There was, the Court found, no evidence before the Court to demonstrate what the filescontained, or if there was any connection between the files and the accused.

In the end, Judge Gorman concluded that the applicant wassimply seeking access to the files to determine if anything contained therein could be relevant. [73] These are just a few of the cases referred to in the materials in which applications for disclosure are at issue. The cases,including Gubbins, Groves, Jackson and Saulter, all turn on their particular facts. In some instances, an application will fall short becauseof the lack of necessary evidence: examples include Gubbins and, to some extent, Groves. In other cases, Saulter being a good example,the application is little more than a fishing expedition.

In any case, the authorities cited herein do not alter the general rule that anapplicant seeking third party disclosure must show by evidence or information that the documents sought will likely be relevant to amaterial issue at trial. [74] This then brings me to the question whether the documents sought in this application are likely relevant to one or more of theissues the Applicants submit will arise in their defence of these charges. I will deal firstly with the

interpretation of the Authorization. VII. The Authorization [75] I have set out in some detail the process leading up to the issuance of the Authorization. In doing so, I bear in mind the evidenceof Mr. Byron Nutton that, whatever process occurred before the PRPA submitted its application for an s. 35(2)(

b) Authorization, DFOregulatory officers looked only at the CSR in determining whether it would issue the Authorization. On behalf of the Attorney General,Mr. Katz submits that this distinction between DFO as a regulator and/or investigator, and DFO as an RA in the environmental reviewprocess, including its role in the CSR, is critical. [76] The Crown argues more forcefully that to order disclosure of the documents sought would be tantamount to requiring DFOinvestigators and/or regulatory authorities to review each of the documents themselves before issuing the Authorization.

Crown submitsthat the only relevant documentation necessary to interpret the Authorization is the Authorization itself, supplemented by the CSR. TheCrown urges that the Applicants are entitled to the documents reviewed by DFO acting in its regulatory capacity in issuing the

Authorization, and nothing more. [77] Turning to the O’Connor test, the Applicants argue that given the nature of the Project and the charges at issue, there is nodoubt that the

interpretation of the Authorization will be a material issue in the trial of this matter. The Authorization constitutes anacknowledgment that in carrying out the Work, serious harm to fish will occur. Though I have set out the material

section earlier in thesereasons, it is useful to reproduce that portion here as follows: The serious harm to fish likely to result from the proposed Work(s), undertaking(s), or activity(ies), and covered by thisauthorization includes Destruction of 11,300 m2 of intertidal and 19,000 m2 of subtidal habitats, that currently provides migratory, rearing and refuge habitatsutilized by fish that contribute to commercial, recreational and Aboriginal fisheries. [78] At issue in the trial will be whether the Authorization should be read so as to acknowledge that the serious harm to fishoccasioned by the Work authorized by the Authorization includes the death of fish. [79] The Applicants make a compelling case that throughout the entire environmental assessment process, beginning with theproposal by the PRPA and CN, the question of fish mortality, or the impact of the Project on fish and fish habitat, was identified as asignificant issue.

References to fish mortality appear numerous times in the CSR

section addressing impacts of the Project on the marineenvironment. In turn, the CSR is a product of all of the meetings and consultations and discussions among the parties and technicalworking groups, including DFO personnel. It is a lengthy

summary of an even lengthier environmental review process.

Documentsproduced as the process unfolded would by necessity include information concerning the Work authorized by the Authorization and itspotential impact on fish mortality. [80] The thrust of the Applicants’ case on this disclosure application is not that DFO regulators should have reviewed this material(though the Applicants do not entirely accept the regulators confined themselves to the CSR), but that the documents are likely to assistthe Court in interpreting the Authorization whatever DFO, acting in its regulatory capacity, examined. [81] In support of this argument, the Applicants rely strongly on two decisions by the Northwest Territories Territorial Court, bothinvolving BHP Diamonds Inc. (“BHP”). [82] BHP was charged with various offences under the Fisheries Act in relation to work done in support of one of its mines.

For thepurposes of this application, the material charge is Count 2 of the Information in that case, which charges that BHP unlawfully carriedout work that resulted in the harmful destruction of fish habitat. In particular, the Crown alleged that in constructing a diversion channel,BHP caused sediment to be deposited into Kodiak Lake. As in this case, BHP was granted an Authorization by DFO to engage in workthat would result in the harmful destruction of fish habitat.

On its face, the Authorization expressly permitted the construction of thediversion channel and the diversion of water into Kodiak Lake. [83] At the preliminary hearing (R. v. BHP Diamonds Inc., 2001 NWTTC 2), BHP submitted that the Authorization constituted acomplete defence to Count 2 of the Information. While agreeing that the Authorization was unambiguous, the Preliminary InquiryJustice, Bruser J., held also that findings of fact were necessary to determine whether the work conducted by BHP fell within the work(s)defined in the Authorization.

For that reason, the defendant was committed to stand trial on Count 2 and other counts. [84] The Applicants rely on this decision for the comment at para 78 that “the

interpretation of the Authorization is a combination oflaw and fact...” The Applicants submit that holds true for this Authorization as well. [85] In my view, Justice Bruser’s reasoning in this decision does not support a general proposition that the

interpretation of allAuthorizations are a question of mixed fact and law. Even in that case, Justice Bruser agreed the Authorization was unambiguous. Atissue was not what the Authorization stated on its face; rather the question, at least for the Preliminary Inquiry Judge, was whether hecould be certain at that stage that BHP had carried out the work provided for on the face of the Authorization.

Still numerous documentsand other evidence external to the Authorization granted to BHP were referenced at trial in order to arrive at a fair and reasonableinterpretation of the Authorization. [86] In the trial before Justice Richard (R. v. BHP Diamonds Inc., 2002 NWTSC 74 , 2002 N.W.T.J. No. 91; hereafter “R.v. BHP”), BHP argued again that the Authorization was a complete defence to the charge it had unlawfully carried out work resulting inthe harmful destruction of fish habitat. Justice Richard writes at para 115 that both the Crown and BHP urged upon the Court quitedifferent

interpretations of the Authorization. BHP pointed to the wording of the Authorization which covered the work or undertakingthat was the subject of Count 2 of the Information. In turn, the Crown argued that the Authorization document mentioned only 12 lakes,not including Kodiak Lake. [87] In his discussion of the merits of these two arguments, Justice Richard extensively canvasses aspects of the environmentalreview process leading up to the Authorization. He refers to an Environmental Impact Statement (“EIS”) submitted by BHP describingits proposed project.

Justice Richard also considers negotiations between BHP and DFO as well as BHP’s application to the NorthwestTerritories Water Board for an amendment to its water license, before going on to consider the actual wording of the Authorization. [88] In interpreting the Authorization, Justice Richard took into consideration BHP’s application for the Authorization. Thatapplication consisted of a letter in which BHP sought approval for an s. 35(2) Authorization.

In doing so, BHP reminded DFO that it hadsubmitted an EIS and additional documents and advised DFO that those and all documents resulting from the negotiations wereincorporated by reference in the application. In light of that fact, Justice Richard concluded that the only fair and reasonableinterpretation of BHP’s application was that it was applying for an s. 35(2) Authorization to, among other things, construct the diversionchannel. All of this in turn informed the Court’s

interpretation of the Authorization at para 134 as including the construction andoperation of the diversion channel. [89] In addressing the Crown’s contrary submission that the Authorization referenced 12 lakes that would be impacted by BHP’s

work, but specifically not Kodiak Lake, Justice Richard held at para 135 that on a fair reading of the entire documentation, the Authorization was simply setting out some but not all of the particular harmful effects that were anticipated by the work. [ 90 ] Justice Richard’s decision in R. v. BHP is a clear example of a court utilizing documentation generated in the course of an environmental assessment process as a means of interpreting the intent of an s. 35(2) Authorization. [ 91 ] The Crown submits R. v.

BHP is distinguishable because BHP advised DFO in its application letter that its’ EIS and other additional documents resulting from negotiations with DFO over years were incorporated by reference into the application itself.

The Applicants point to DFO’s Authorization Application Form which states that an “applicant does not need to re-submit documents that have already been submitted to DFO for review.” In effect, it is submitted it is implicit in DFO’s own form that documents generated throughout the environmental assessment process and submitted to DFO are incorporated by reference. [ 92 ] What is unclear in R. v.

BHP is whether the DFO authority signing the Authorization read all of the documents incorporated by reference in BHP’s application, or was simply aware of the nature of the negotiations and the scope of the proposed project. It does not appear that the issue was even argued. What is clear in this case is that in its role in the environmental assessment process, DFO had fulsome knowledge of the Project, and the expected impact of the Project on the marine environment, including the potential of fish mortality.

Does this knowledge become irrelevant no matter what the content because DFO regulators confined themselves to a review of the CSR on its face? In my view it does not. [ 93 ] In considering this application, I am mindful that the courts must ensure an accused is able to exercise the right to make full answer and defence. Restrictions on the disclosure of third party documents balance that right against the rights of third parties by refusing applications for disclosure that are frivolous, or no more than a fishing expedition. [ 94 ] Here, the Applicants have shown that the

interpretation of the Authorization is a serious issue for trial. In particular, the question at trial at least on Count 1 is whether the Authorization ought to be interpreted so that the harm to fish, which is an authorized result of the approved Work, includes the death of fish. The Applicants have shown that fish mortality was given consideration throughout the environmental assessment process; it was a consideration from the outset and one, the Applicants expect to argue, DFO accepted might result from the proposed Project. [ 95 ] In my view, many but not all of the documents sought by the Applicants are likely relevant to a material issue at trial; that being (at this point) the

interpretation of the Authorization. I will return to this issue shortly but not before addressing the argument of the Attorney General regarding the sufficiency of the material already in the possession of the Applicants. [ 96 ] Mr. Katz submits that O’Connor entitles an accused to disclosure of third party documents that are not already in the accused’s possession, where those documents are likely relevant to a material issue at trial. Mr. Katz submits that to the extent the Applicants seek documentary proof that fish mortality was an expected result of the Project, they have all they need in the CSR.

This is similar to the submission in R. v. Zaporoski although ultimately Mr. Zaporoski’s application for disclosure was denied because he failed to prove likely relevance in any event. If, as I find here, at least some of the third party documents sought are likely relevant to a material issue at trial, it cannot be that I must deny the application because the Applicants are in possession of one other document containing likely relevant material. Additionally, I find I agree with Ms.

Cleary that it is not useful to suggest the Applicants start with the CSR and seek documents later if the matter arises during cross-examination. Presumably, the point is to have all the documentation in order to prepare for cross-examination. [ 97 ] This question of the Applicants being in possession of documents does raise another issue and that is that the PRPA in particular has been a party to the environmental assessment process from its inception. Indeed, as the proponent, the PRPA, along with CN which is not a party to this proceeding, is the primary driver of the Project.

Both Bel Pacific and FRPD filed affidavit evidence that they were not in possession of any of the documents sought. Mr. Cameron for DP World, the successor to Maher Terminals, was unable to confirm whether his client had some of the documents sought and I accept for the moment, without fully deciding, that there may be a basis for the confusion. [ 98 ] PRPA has filed no affidavit material indicating whether or not it is in possession of the documents sought.

A brief review of the application for disclosure would suggest PRPA is in possession of many if not all of the documents that are likely relevant to this prosecution, at least with respect to those records or documents in the date range from March 1, 2008 to December 31, 2013. In submissions, PRPA acknowledged it was in a different position than the other Applicants but argued that whether or not it had the documents sought, it was entitled to know what DFO did with them.

This, I find, is an insufficient basis on which to base a claim for third party disclosure. [ 99 ] I have considered whether there is a category of documents or records in DFO’s possession having likely relevance in this case that PRPA may not possess. For example, documents or records likely touching on the shifting regulatory environment as the environmental assessment process proceeded. I accept that the various amendments to the federal fisheries legislation outlined earlier in these reasons will form part of the defence, specifically in relation to the

interpretation of the Authorization. However, it is pure speculation to suggest there are documents in DFO’s possession connecting the amendments with the Project or the Work in any way. While I appreciate the Applicants cannot know the contents of the documents they seek, they must still show by evidence or information that the documents sought will likely be relevant to a material issue at trial. [ 100 ] In the result, I find that there is no basis on which I could grant PRPA’s application for disclosure of documents or records in DFO’s possession likely relevant to the

interpretation of the Authorization. For these reasons, as I will touch on below, I would deny PRPA’s application for disclosure entirely. VIII. The Defences of Due Diligence and Mistake of Fact [ 101 ] The Applicants submit that if the Crown proves the actus reas on Count 1, it is open to any or all of them to advance the defences of due diligence and/or mistake of fact. There is no dispute in this case that the offence charged in Count 1 (as in all of the Counts) is a strict liability offence. If the actus reas is proven, it is open to the Applicants to advance these two defences, both of which

are set out under s. 78.6 of the Fisheries Act . [ 102 ] With respect to the defence of due diligence, s. 78.6 provides that no person shall be convicted of an offence under the Fisheries Act if the person establishes they exercised all due diligence to prevent the commission of the offence. The accused must show it took all reasonable care to avoid what was a reasonably foreseeable event: namely, the commission of the offence. [ 103 ] Here, the Applicants submit, forcefully at times, that no one could conceivably have thought the Work could be carried out without resulting in the death of at least some fish.

They submit that in considering the design of the Project, and the nature of the Work, the impact of fish was considered and various approaches to the construction of the Project considered in the course of the entire environmental assessment process by DFO, among others. The Applicants point to the various technical working groups, some of which would have considered design issues. [ 104 ] In

summary, the Applicants submit that DFO would have, during the course of the entire environmental assessment process looked at, considered, gathered and generated documents concerning proposed construction and design impacts on fish habitat, including the possibility of fish mortality. The question of what was foreseeable, or what was likely, or what was unavoidable by way of fish mortality, would almost certainly have arisen. The Applicants submit these documents would likely be relevant to the issue of due diligence. I find I agree.

However, I am not satisfied that PRPA is not already in possession of this material. For the reasons given, I find PRPA has not satisfied the test for its third party disclosure application. [ 105 ] As for the defence of mistake of fact, the submissions are unclear. As I find I agree with the Applicants that many of the documents sought in the application for disclosure are likely relevant to the

interpretation of the Authorization, and to the issue of due diligence, I will make no comment on this possible defence. In my view, the documents sought on this ground are in any event indistinguishable from those sought on the other two grounds. For this same reason, I decline to rule on the question whether the documents sought are likely relevant to the Applicants’ applications for the exclusion of evidence pursuant to s. 24(2) of the Charter . IX.

Conclusion [ 106 ] The Applicants seek disclosure of documents in DFO’s possession from March 1, 2008 through December 31, 2013 relating to the Project and the federal environment assessment process. The particular types of documents sought have been listed earlier in these reasons.

It is a broad request involving notes and memoranda, reports and articles, policies, notes to file, presentations, correspondence including telephone calls and email between staff, calendar records, inspection records and so forth. [ 107 ] One of the difficulties with the breadth of the application is that it necessarily captures a broad range of documents having nothing to do with the potential impact of the Project on the marine environment, which is fundamentally at issue here.

As one of three RAs, DFO would have in its possession many thousands of documents related to the Project but having nothing to do with the potential impact on the marine environment. As the CSR indicates, the study considered myriad issues; one of which was the potential impact of the Project on the marine environment. [ 108 ] The Crown raised concerns with the request for calendar records, records of telephone calls and emails and so forth. In many respects, I share the concern. Ms.

Cleary submitted such documents might contain a reference to a meeting about fish habitat or fish mortality, which would merit some further investigation. I agree with the Crown that this does have the attributes of a fishing expedition.

Still, if a record, such as a calendar note or call record referring to the potential impact on fish or fish habitat exists and, of course, relates to the Project, and falls within this time frame, it should be disclosed. [ 109 ] For the reasons given, I would limit production to an order that DFO make available for inspection and production to the defendants FRPD, Bel Pacific, and DP World all records in its possession from March 1, 2008 to December 31, 2013 relating to the impact or potential impact of the Project, including as a result of the design or construction of the Project, on fish or fish habitat.

I accept this disclosure should include: (

a) records considered, produced or relied upon in the determination of factors to be taken into consideration in the Project's environmental assessment and/or the Project's terms of reference; (

b) records considered, produced or relied upon in preparation of the Comprehensive Study Report; (

c) records considered, produced or relied upon in making the Course of Action Decision; and (

d) records considered, produced or relied upon in ensuring that mitigation measures were implemented in taking a Course of Action. [ 110 ] In addition to the documents referred to above, the Applicants also seek an order that DFO make available for inspection and production all records in its possession from January 1, 2014 to November 5, 2014 regarding the Authorization, including the pre- application, application and post-application process. These documents would, it is submitted, would contain information likely relevant to the

interpretation of the Authorization. [ 111 ] It is unclear from the materials what would be captured by documents in the pre-application stage. In any event, the Applicants bear the onus of proving the documents falling under this category and date range would likely be relevant to the

interpretation of the Authorization. Again, clearly the

interpretation of the Authorization is a material issue in this case, but the Applicants have not shown these documents would contain information likely relevant to that issue. [ 112 ] There is, in the filed material, positive evidence in the affidavit of Byron Nutton that in considering and approving the Authorization, DFO regulators did not consider any document other than the CSR, and even then the focus was on mitigation strategies. Mr. Campbell submits the Applicants ought not to be bound by this evidence; yet it is sworn, uncontroverted and, as yet, unchallenged testimony.

The evidence on this hearing is that as far as the Authorization process is concerned, DFO confined itself to the CSR. The idea that there may be documents in which DFO regulators discuss something other than the CSR, or that DFO regulators may have

considered and/or discussed fish mortality, is speculative, particularly in light of Mr. Nutton’s evidence. As such, the application for inspection and production all records in its possession from January 1, 2014 to November 5, 2014 regarding the Authorization is denied. [ 113 ] Having made an order for production, the second stage for production outlined in O’Conno r must be addressed. In his written submissions, Mr. Katz has helpfully suggested a process for this next segment.

I accept his submissions that the appropriate procedure is for DFO’s counsel to take possession of the materials and to vet the records in accordance with this ruling. Submissions may then be made respecting privacy, privilege, relevance, and so forth. As Mr. Justice Williams writes at para 11 of R. v. Pickton , 2006 BCSC 2112 , it will then be the responsibility of this Court to determine which materials, if any, are to be delivered to the Applicants. _______________________________ The Honourable Judge L. Mrozinski Provincial Court of British Columbia