R. v. Kalia Resources, 2022 BCPC 304

Citation: R. v. Kalia Resources 2022 BCPC 304 Date: 20221018 File No: 36408 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. KALIA RESOURCES CORP. and JOSEPH CRAIG KITZKE ORAL RULING ON VOIR DIRE RE: ss. 8, 9, 10(a), 10(

b) OF THE HONOURABLE JUDGE D. REEVES Counsel for the Crown: G. McDonald, S. Cassell, by telecommunication Counsel for the Defendant: C. Leggett, by telecommunication Place of Hearing: Fort St. John , B.C. Fort St. John , B.C. March 29, 30, 31, April 6, 2022 Date of Ruling: October 18, 2022

OVERVIEW [ 1 ] Mr. Joseph Kitzke is sole owner of Kalia Resources Corp. (“Kalia”) and applies to exclude evidence gathered by Conservation Officers (“COs”) Harris and Pauls while investigating allegations that he breached the Environmental Management Act (“EMA”) and the Public Health Act (“PHA”) . The two COs attended Mr. Kitzke’s residence and place of business located on a rural property in Charlie Lake, BC (the “Property”) on November 10, 2018 on two occasions, each time without prior judicial authorization. In the course of the second visit, the COs observed activity and asked questions of Mr.

Kitzke, all of which led them to believe an offence was in progress. The COs seized a sewage vacuum truck (the “Sewage Truck”) and contents of both the truck tank and the cab of the truck for further investigation. An inventory search of the Sewage Truck was conducted and it was transported to a conservation warehouse for further investigation. Subsequent judicial authorization was then received permitting search and seizure from the Sewage Truck (the contents of the vehicle cab and the sewage tank), a sewage lagoon on the Property, contents of another sewage truck belonging to Mr.

Kitzke and the contents of the Kalia home office. A statement made by Mr. Kitzke during the second visit and all of the seized items, including business records and contents of the Sewage Truck, were used in the laying of charges under the EMA and PHA . [ 2 ] Mr. Kitzke argues that during the second visit, he was arbitrarily detained contrary to his s. 9 Charter rights and was not promptly advised of the reason for his detention and his right to counsel contrary to ss. 10(

a) and 10(b). Further, Mr. Kitzke urges this Court find that the COs entered his property on the second visit under false pretenses and asks this Court to find that his s. 8 Charter rights were breached by this warrantless search, or in the alternative, that they exceeded any lawful reason to be present and unlawfully seized the Sewage Truck. Mr. Kitzke also asks this Court to find that following these seizures, the COs further breached their duty of full, fair and frank disclosure when they applied to amend a Detention Order and then further detained his property in violation of his s. 8 Charter rights.

In remedy, Mr. Kitzke asks that all evidence obtained from the search and seizure of property on that occasion and all evidence seized derivative thereto be excluded pursuant to s. 24(2) of the Charter . [ 3 ] The Crown submits first that as the investigation and offences in question are regulatory and not criminal in nature, the required contextual analysis should engage a lower Charter standard. The Crown concedes that the COs attendance at the Property was not judicially authorized; however, argues that the first visit was to investigate an unrelated allegation of unauthorized commercial burning.

The second visit was initially a follow up to the first and thus, the common law invitation to knock principal applies. Once the COs then observed suspicious activity, the subsequent seizure was authorized by the EMA . The Crown also submits that Mr. Kitzke was never detained, much less arrested and thus, no breach of his ss. 9, 10(

a) or 10(

b) rights occurred – although it is conceded that in the event this Court finds that Mr. Kitzke was detained, his ss. 10(

a) and 10(

b) rights were not observed. The Crown also argues that the Detention Order remained lawful at all times and no duty of full, fair and frank disclosure was breached – to the contrary, COs erroneously sought to extend the order due to their own misunderstanding of the law and did so out of an abundance of caution. Lastly, the Crown suggests that should any breach of Mr. Kitzke’s rights be found, any resulting evidence should not be excluded pursuant to s. 24(2). [ 4 ] In this voir dire , Mr.

Kitzke raised many points that were individually valid; however, this Court must consider them within the totality of circumstances. Given the totality of the circumstances present here, Mr. Kitzke’s application to exclude evidence fails and the evidence gathered and subject to this voir dire is admissible within the trial proper. [ 5 ] The issues addressed by this Court to arrive at this decision were as follows: 1. Charter standard of review for regulatory prosecutions. 2. Were Mr. Kitzke’s s. 8 rights breached when the COs attended his Property and subsequently seized the Sewage Truck? 3. Was Mr.

Kitzke arbitrarily detained contrary to s. 9? 4. Did the inventory search of the Sewage Truck breach Mr. Kitzke’s s. 8 rights? 5. Did a requested extension for items seized breach Mr. Kitzke’s s. 8 rights? 6. Were seized items excessively detained in breach of Mr. Kitzke’s s. 8 rights? Governing Provincial Legislation [ 6 ] Applicable to this matter, the EMA provides as follows:

Part 9 — Conservation Officer Service Division 2 — General Enforcement Tools . . . Warrantless search in exigent circumstances 107.03 . . .

(2) If the conditions necessary for obtaining a warrant under

section 107.02 exist but the delay necessary to obtain the warrant would result in a danger to human life or safety, a member of the Conservation Officer Service may, without a warrant,

(

a) search real or personal property, including premises or a part of premises occupied solely as a private residence, and (

b) seize and remove anything that the member has reasonable or probable grounds for believing may provide evidence of the commission of an offence under a designated enactment.

(3) If the conditions necessary for obtaining a warrant under

section 107.02 exist but the delay necessary to obtain the warrant would result in the loss or destruction of evidence, a member of the Conservation Officer Service may, without a warrant, (

a) search real or personal property, except premises or a part of premises occupied solely as a private residence, and (

b) seize and remove anything that the member has reasonable or probable grounds for believing may provide evidence of the commission of an offence under a designated enactment. Inspection of records and warrant to seize records 107.04

(1) A person required by a designated enactment to keep records must submit the records to a conservation officer for inspection on request.

(2) If a person refuses to submit records for inspection as required under this section, a justice, on being satisfied that an inspection of the records is necessary for the administration of the enactment that requires them to be kept, may issue a warrant authorizing a conservation officer to enter property specified in the warrant and to seize the records.

(3) A conservation officer who enters on property in accordance with a warrant issued under subsection (2) may bring persons and equipment that may be necessary for the purpose of the warrant. Application of Offence Act in relation to sections 107.02 and 107.03 and to inspections 107.1

(1) The forms referred to in

section 21 of the Offence Act , and sections 22 to 24.2 of that Act, apply to a warrant under

section 107.02 of this Act, and to a search and anything seized by a conservation officer under

section 107.02 or 107.03 (2) of this Act.

(2) If, under section 24 (2) (

a) of the Offence Act , a justice orders that something referred to in subsection (1) of this

section be detained, despite section 24 (3) of the Offence Act , the thing may be detained for up to one year before an order under section 24 (5) of that Act, authorizing its continued detention, is required. . . .

Part 9.1 — Compliance Division 1 — General Powers Inspections 109

(1) For the purposes of ensuring compliance with this Act and the regulations, an officer may enter land or premises, except premises or a part of premises occupied solely as a private residence, at any reasonable time and inspect any process, works or activity that . . . (

c) is used for the storage, handling, treatment, destruction or disposal of waste. . . .

(4) An officer who enters on land or premises under subsection (1) . . . may do any of the following: (

a) inspect, analyze, measure, sample or test . . . any article, substance or waste located on or in the land, and premises to ascertain (

i) whether pollution is present, (ii) the quantity of waste produced, treated, stored, handled, transported or discharged, or (iii) the characteristics of waste produced, treated, stored, handled, transported or discharged; (

b) take away samples of land, articles, substances or waste; . . . (

d) require that anything related to the production, treatment, storage, handling, transportation or discharge of waste be operated, used or set in motion under conditions specified by the officer; . . . (

f) record or copy by any method any information related to the production, treatment, storage, handling, transportation or discharge of waste; . . .

(

i) take photographs or make audio or video records. . . . Inspection of vehicles 111

(1) In this section: . . . "vehicle" includes a vehicle as defined in the Motor Vehicle Act . . .

(2) For the purposes of ensuring compliance with this Act or the regulations, including with a permit, licence, order, waste managementplan or approval, if an officer has reasonable grounds for believing that a vehicle is being used for the transportation or handling ofwaste, the officer may, at any reasonable time, (

a) require a person operating the vehicle to stop the vehicle and provide identification, and (

b) carry out an inspection in accordance with this section.

(2.1) When requested or signalled to do so by an officer who is readily identifiable as a conservation officer, or as a peace officer asdefined in the Motor Vehicle Act, the operator of a motor vehicle must immediately (

a) stop the vehicle, and (

b) provide identification and the information that the officer or peace officer considers necessary to determine whether this Act and theregulations are being complied with.

(2.2) For the purposes of carrying out an inspection under this section, an officer may (

a) require that any compartment of the vehicle or any container in or on the vehicle be opened, and (

b) exercise any of the powers under section 109 (4) [inspections]. . . . Seizures and prevention orders 112

(1) If an officer concludes in the course of an inspection under this Act that the officer has reasonable grounds to believe that aperson has contravened or is contravening this Act or the regulations, the officer may (

a) order a person to do anything the officer considers necessary to stop the contravention or prevent another contravention, and (

b) seize anything validly inspected by the officer that the officer believes on reasonable grounds (

i) was used or is being used in the contravention, or (ii) will afford evidence of the contravention. . . . 1. Charter Standard of Review for Regulatory Prosecutions [7] It is common ground that all of the alleged Charter breaches occurred where Mr. Kitzke both lives and operates his businessfrom. Mr. Kitzke argues this fact must guide the court’s analysis in favour of a higher standard than otherwise might be normal in stateregulatory investigations.

He initially suggested that the degree of any reasonable expectation of privacy is a matter to be examined notunder s. 8, but when conducting an analysis pursuant to s. 24(2) in the event s. 8 is found to have been breached. Although not argued, Iinterpreted this argument to extend to Mr. Kitzke’s allegation of being arbitrarily detained contrary to s. 9 of the Charter, followingwhich his s. 10(

a) and (

b) rights were consequently not observed. Mr. Kitzke further suggested that this Court must employ a strict,quasi-criminal standard in examining if any Charter breaches occurred, regardless that only regulatory charges have been laid. No basisin common law or statute was provided to support this and the court must respectfully disagree with Mr. Kitzke’s position. To thecontrary, the substantive Charter analyses requires all circumstances present in the situation be considered. [8] Mr.

Kitzke bears the onus of establishing on a balance of probabilities that his s. 8 rights were infringed or denied and ifsuccessful, the burden then rests with the Crown to establish the reasonableness of the search (R. v. Collins, (SCC),[1987] 1 S.C.R. 265 at 277-278). This same onus extends to challenges under s. 9 (R. v. Lotfy, 2017 BCCA 418 , at para 32; R.v. Orr, 2021 BCCA 42 , at para 42).

The s. 8 expectation of privacy must be reasonable, assessed in the circumstances of thesituation and balancing the public’s interest in being left alone by government against the government’s interest in advancing its goals(Dickson J. (as he then was) in Hunter et al v. Southam Inc., (SCC), [1984] 2 S.C.R. (“Hunter”) 145 at pp. 159-160). [9] Criminal offences are distinguished from regulatory offences and the objective reason for this was set out in R. v. WholesaleTravel Group Inc., (SCC).

Justice La Forest held that conduct prosecuted as a crime is “so abhorrent to the basic valuesof human society that [they] ought to be prohibited completely.” In contrast, regulatory offences are based upon prohibited conductrelated to dangerous conditions that society, particularly the vulnerable, would be exposed to if left unregulated. Regulatory legislation

takes a broader consideration of the protection of the public and societal interests, in contrast to criminal law that focuses on individualinterests that are placed in jeopardy through the moral fault of criminal conduct and which requires deterrence and punishment. “Whilecriminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generallydirected to the prevention of future harm through the enforcement of minimum standards of conduct and care.” As a result, regulatoryoffences embody different concepts of fault than crimes.

Regulatory offences are directed towards the consequences of action and importa lesser degree of culpability, in contrast to true crime convictions. The required degree of fault in regulatory offences is based on astandard of reasonable care and not the moral blameworthiness found in criminal offences and thus, regulatory conviction carries with itonly the stigma of having failed to meet a prescribed standard of care. As a result, within regulatory prosecutions, the protection ofindividual rights are to be applied less stringently and with a greater focus on enforcement than in criminal prosecutions (R. v.

WholesaleTravel Group Inc., at pp 216 – 218). [10] This does not mean that Charter protections are absent in regulatory prosecutions. Rather, the impugned Charter right such asthe reasonable expectation of privacy is to be assessed in light of the totality of the circumstances (R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, at para 45; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para 19). 2. Were Mr. Kitzke’s s. 8 rights breached when COs attended the Property andsubsequently seized the Sewage Truck? [11] Mr.

Kitzke urges this Court to find that the COs conducted a warrantless search by attending the Property that he occupies forboth business and residential purposes on the second occasion. Mr. Kitzke further urges this Court to find that the subsequent seizure ofthe Sewage Truck was unlawful and thus, also breached his Charter rights. With respect, this Court disagrees. The COs lawfullyattended the Property and, once a possible breach of the EMA was suspected, the Sewage Truck was lawfully seized. [12] Mr.

Kitzke first suggested the COs intentionally entered onto the Property to further an investigation into illegal dumping ofsewage. In the alternate, he suggests that having lawfully driven onto the Property, COs then commenced an investigation that extendedbeyond any pre-existing lawful purpose for being there. The Property is comprised of two adjoined “lots” located on a rural site andbears no posted signage to publically mark the Property as a business location. On these two lots are both Mr.

Kitzke’s residence and anumber of commercial items, including moveable business property such as septic vacuum trucks and several thousand wooden pallets,as well as a workshop. No evidence was heard whether any form of fencing or other visible marking was used to delineate the businessfrom the residential portion. It was apparent however that a significant amount of business property, and the management of the businessitself, takes place from in and around the two lots and the residence itself. [13] The COs first attended the Property in the middle of the afternoon on November 10, 2018.

A report had been received that a largefire was taking place contrary to governing air quality regulations. The COs initially spoke to the single individual present regarding thisfire which was composed of multiple wooden pallets, at which point Mr. Kitzke was observed driving the Sewage Truck onto theProperty. Mr. Kitzke was told he was not detained but was read a Charter warning and caution, and proceeded then to give a voluntarystatement. The COs then departed and parked a short distance away on a public road while they conferred amongst each other and with asuperior. During this period, Mr.

Kitzke departed the Property in a different, commercial-style truck and drove past the COs parkedalongside the roadway. A short time later, Mr. Kitzke returned and again drove past the COs and asked if they needed anything further.Mr. Kitzke was told that they did not and he drove on. [14] The COs continued to consider the first incident and their visit to the Property and, several minutes after Mr. Kitzke haddeparted, concluded that they needed to set another appointment for him to attend their offices.

The COs drove back to the Property atapproximately 6:00 pm and upon arriving at the Property, they immediately observed the Sewage Truck now backed up to a sewagelagoon near the driveway and across from the residence. The rear tank of the Sewage Truck was elevated from the front, a loud motorwas running and Mr. Kitzke was seen standing in the vicinity of the driver’s side rear of the sewage tank, a place that CO Pauls believedwas consistent with where the tank controls would be found. As the COs parked their vehicle, Mr.

Kitzke approached and CO Harrisadvised they had returned to arrange a follow-up meeting regarding the first pallet-burning matter. At this point, CO Harris asked whatMr. Kitzke was doing with his truck, to which Mr. Kitzke replied he was performing a functionality test to confirm the operation of theSewage Truck’s equipment by sucking up and then discharging material. [15] The COs continued to look at the truck and its immediate surroundings and noted a hose connected to the rear of the truck.

Fromthe end of the hose was observed a large dark “V” in the snow which they concluded was fresh discharge of dark fluid, likely sewage,into the sewage lagoon. Conservation Officer Harris asked about the origin of the Sewage Truck contents and after a series ofcontradictory explanations and attempts to deflect the question, advised Mr. Kitzke he could be charged with obstruction if he lied tothem. Mr. Kitzke then advised that the Sewage Truck contents originated from another property. The COs formed a belief that Mr.Kitzke was in the process of improperly dumping sewage into the lagoon and CO Harris advised Mr.

Kitzke they were now investigatingan offence of dumping into the lagoon and provided him a Charter caution. [16] Mr. Kitzke suggests first that COs Harris and Pauls entered onto the Property on the second occasion specifically to gatherevidence in relation to longstanding allegations of illegal dumping of sewage and thus, should have sought a warrant in the first instance.This suggestion was not supported by the evidence and is rejected. In support of his argument, Mr.

Kitzke argued that the COs were bothaware, to varying degrees, of a history of complaints by sewage-hauling competitors made against him and suggested the COs would beaware that all that was required to support charges was evidence of illicit dumping of sewage. Mr. Kitzke also argued that CO Pauls,while attending the Property on the first occasion, had taken photos and notes regarding the Sewage Truck and another similar vehicle,neither of which had any link to the alleged burning investigation. This suggestion was firmly rejected by both CO Pauls and Harris and Iaccept their evidence in this regard.

While photos and notes were taken on the first visit of items in plain sight but having nothing to dowith the fire incident, no evidence of a nefarious plan to catch Mr. Kitzke “in the act” of sewage dumping was heard. Moreover, the COswere authorized at EMA s.109(4)(

i) to take photos of the trucks to further compliance efforts, as testified to by CO Pauls. Both CO Harrisand Pauls strenuously denied attending the Property the second time for anything but to follow up on the fire investigation and in fact,remarked that having been seen parked in the vicinity by Mr. Kitzke just minutes prior to their return, they would never have expectedhim to undertake prohibited dumping at that time knowing they were in the area.

[17] Mr. Kitzke then argued that even while a common law “invitation to knock” may have existed when the COs initially attendedthe Property during their second visit, this changed when the COs observed one of his vacuum trucks and activity that aroused theirinterest. Mr. Kitzke argued that once this occurred and the COs commenced gathering evidence by asking questions and walking aroundthe truck, the invitation to knock authority ceased and a warrant should have been sought. Mr. Kitzke relied on R. v.

Evans, (SCC), [1996] 1 SCR 8, in suggesting that having entered the Property and seeing something that aroused their suspicion regarding apotential regulatory offence, their actions became a search and they were required to seek judicial authority to continue. Mr. Kitzke lastlyargued that the “plain view doctrine” did not apply, as the COs went beyond simply viewing a thing that caused them to form a belief anoffence was occurring. Rather, they began actively gathering evidence by asking questions and further walking around to makeobservations before they formed this belief. Mr.

Kitzke suggests that prior to asking questions and making further observations, the COsdid not have sufficient evidence to form a belief and thus, exceeded the otherwise lawful right to be present on the Property. Lastly, Mr.Kitzke relied on Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, for the proposition that this warrantless searchwas prima facie unreasonable. [18] In Evans, the majority of the court held that the implied license to knock permits a visitor only that conduct necessary for thepurpose of convenient communication with the occupant of the dwelling, which does not include an intention to also gather evidence insupport of criminal charges (para 9, 13).

Thus, the intent of the police in attending the residence is relevant to assess the legality of theact and whether it constituted a “search” for constitutional purposes (para 11). [19] In Potash v. Comité paritaire de l'industrie de la chemise (“Potash”) (SCC), La Forest J. (as he then was)acknowledged that both statutorily permitted inspections and law enforcement searches have a common basis – “an active quest for thetruth”. He then clarified the difference between an inspection and a search as: An inspection is characterized by a visit to determine whether there is compliance with a given statute.

The basic intent is not to uncovera breach of the Act: the purpose is rather to protect the public.

On the other hand, if the inspector enters the establishment because he hasreasonable grounds to believe that there has been a breach of the Act, this is no longer an inspection but a search, as the intent is thenessentially to see if those reasonable grounds are justified and to seize anything which may serve as proof of the offence. [p. 417] [20] The purpose and need for lawful inspections is important but a balance must still be struck with regards to an individual’sexpectations of privacy and while s. 8 does not prohibit inspections without prior authorization, it continues to impose a “reasonableness”requirement (Potash at pp. 419-420).

La Forest J. then went on to state that “In view of the important purpose of regulatory legislation,the need for powers of inspection, and the lower expectations of privacy, a proper balance between the interests of society and the rightsof individuals does not require, in addition to the legislative authority, a system of prior authorization.” (Potash at p. 422) [21] Madame Justice L’Heureux-Dube in a concurring opinion further pointed out that: . . . a mere complaint is insufficient in itself to justify inspectors being subject to the requirements of Hunter v. Southam Inc.

There is animportant distinction between having reasonable and probable grounds to believe that an offence was committed and simply having aninformation, especially if the latter is given anonymously. An inspection will often be necessary before it is even possible to establish theexistence of reasonable grounds to believe that a breach of the law has occurred. . . . [Potash at p. 454] [22] This Court finds that having arrived and observed Mr.

Kitzke apparently engaged in a regulated activity – the transportation,storage and disposal of sewage – COs Harris and Pauls were permitted to inspect the obvious work or activity related to the “storage,handling, treatment, destruction or disposal of waste” that they observed. Had they arrived with pre-existing reasonable grounds tobelieve that there was a breach of the EMA, they would have required prior judicial authorization as set out in Hunter v. Southam Inc. inorder to progress an investigation.

That was not the case however, as the court accepts their testimony that prior to this evening, they hadno such reasonable grounds. By walking around the Sewage Truck which was obviously in operation of some sort, and making furtherobservations, the COs were exercising their regulatory power to inspect. [23] Further, this Court finds that the regulatory inspection conducted was reasonable in all the circumstances. The observed workwas taking place at approximately 6:00 pm, which was not unreasonable in all the circumstances which includes having observed Mr.Kitzke drive past them only minutes previously.

In inspecting the work that was occurring, the COs observed indicia that sewage,regardless of quantity, had been discharged from the Sewage Truck. This discharge did not occur at an approved disposal facility; ithappened at Mr. Kitzke’s place of business and personal residence. The COs had observed Mr. Kitzke drive the Sewage Truck onto theProperty earlier that same day. Conservation Officers Harris and Pauls walked around the Sewage Truck, making observations and spokewith Mr.

Kitzke to confirm the origin of the material in the Sewage Truck – they did not enter the vehicle and their question regardingthe origin of the Sewage Truck’s contents was reasonable. Mr. Kitzke testified he was only trying to confirm the Sewage Truck wasoperational and troubleshoot a problem. However, he elected to do so at the Property and not at an approved facility. Troubleshooting abusiness vehicle, particularly where the unintended discharge of sewage was possible (and in this instance occurred, as observed by theCOs and admitted by Mr.

Kitzke himself), is still subject to the applicable regulations governing the “storage, handling, treatment,destruction or disposal of waste”. [24] It is also uncontested that Mr. Kitzke’s business activities took place at the Property, which was both a place of business and hispersonal residence. Operation of a home-based business from one’s residence is a not uncommon business practice in Canada. While thisdoes not impose a shield on his business activities, it is a factor that must be considered within the context of the COs’ actions. NeitherCO Harris nor Pauls ever entered Mr.

Kitzke’s residence, nor was evidence heard that they conducted a visual inspection of the outsideof the residence. All of the COs who attended that night in regards to this incident remained within the immediate vicinity of the SewageTruck and the lagoon into which discharge was observed and did not venture further onto the Property. While the alleged dumping wasoccurring into what I accept was Mr. Kitzke’s residential sewage lagoon, no heightened expectation of privacy attaches to that – he choseto test the Sewage Truck there. [25] Mr.

Kitzke argued that an “adversarial relationship” had crystallized when he was questioned about the origin of the SewageTruck contents, prior to receiving a Charter caution and warning. It was suggested that the only reason to seek that information was topermit the COs to pursue charges. In this, counsel relied on R. v. Jarvis, 2002 SCC 73, to suggest that using this “point in time” analysis

demonstrated that the COs’ predominant purpose for gathering information at that point was to lay charges against Mr. Kitzke and thus,full Charter rights needed be complied with. [26] With respect for this line of argument, the court does not agree. In Workers’ Compensation Board of British Columbia v. SeattleEnvironmental Consulting Ltd., 2020 BCCA 365 , Madame Justice Fenlon, for a unanimous court, established that this“crossing the line” framework is not in keeping either with Jarvis, or other jurisprudence in this area (para 29, 31). Citing Justice Binniein R. v.

Nolet, 2010 SCC 24, at paras 41-45, and Jarvis at para 68, Justice Fenlon pointed out at para 33 that in: [33] . . . determining whether evidence gathered using regulatory powers should be excluded from use in a criminal or quasi-criminalproceeding on the basis that it breached the subject’s Charter rights requires contextual analysis . . . [and would] include both theindividual’s interest in not being compelled to self-incriminate and the public’s interest in the proper regulation and control of a licensedactivity that has the potential to cause serious harm to people and the environment. [27] Justice Fenlon further cited R. v.

Rice, 2009 BCCA 569, another case that considered the “point in time” argument in the contextof a regulated activity (hunting of wild game). There, a CO stopped hunters to conduct a check under the Wildlife Act, R.S.B.C. 1996, andasked the hunters who shot the animal – the trial and

summary conviction appeal judge both held that this question was not part of aregulatory inspection and thus, Charter breaches were found. The BCCA overturned these decisions and confirmed the need for acontextual application of Charter rights, including the “hunter’s voluntary participation in a highly regulated activity”. Justice Fenlonheld that the hunters’ regulatory requirement to answer a CO’s questions was a minimally intrusive means of monitoring compliancewith the Wildlife Act and that hunters must be taken to have consented to such monitoring (paras 36-37). [28] Lastly, Mr.

Kitzke argued that the Sewage Truck was unlawfully seized at this point. Mr. Kitzke suggested that there was neitherstatutory nor common law authority for this seizure. The court finds statutory authority existed for the seizure and will therefore onlyaddress that point. [29] Having inspected the work taking place which included the minimally intrusive question regarding the origin of the sewage andpossible dumping at an unregulated site, CO Harris reasonably concluded that a contravention might be occurring. Based upon this, COHarris was authorized by s.112(1)(

b) of the EMA to seize the Sewage Truck as it was literally the means of the possible contraventionand CO Harris could reasonably conclude that a further lawful search was now required. [30] In the alternative, having observed what he reasonably believed was the dumping of sewage at an unapproved facility, CO Harrisalso had authority under exigent circumstances as granted at s. 107.03 (2)(

b) and (3)(

b) of the EMA for the warrantless seizure of theSewage Truck and its contents as evidence of the commission of an offence. [31] Exigent circumstances for a search or seizure may only be relied upon by law enforcement authorities where an immediatedanger of the loss, removal, destruction, or disappearance of evidence if the search or seizure was delayed exists (R. v. Grant, (SCC), [1993] 3 S.C.R. 223, at p. 243).

Here, given the nature of the observed work which involved the Sewage Truck whichwas capable of being removed or altered had it not been seized, exigent circumstances existed. [32] The court finds that Mr. Kitzke’s s. 8 rights were not engaged. Once COs Harris and Pauls observed work related to the regulatedindustry of sewage hauling, storage and dumping, they entered into an inspection as permitted by the regulations. In all thecircumstances, the inspection was reasonably conducted, taking into consideration the time of day, actions of the COs and location of theinspection.

The COs walked around the Sewage Truck and made observations of the immediate vicinity; they asked questions of Mr.Kitzke regarding the origin of the Sewage Truck’s contents. While the Property was Mr. Kitzke’s home, it was also his place of businessand COs refrained from gathering any evidence in or around his personal residence. [33] Mr. Kitzke was voluntarily engaged in a highly-regulated industry that poses a significant danger to people and the environmentand thereby must be considered to have consented to reasonable inspections. [34] Lastly, only regulatory offences have been alleged. 3. Was Mr.

Kitzke arbitrarily detained by COs in breach of his s 9 rights? [35] Mr. Kitzke argued that once COs Harris and Pauls formed a belief that an environmental offence was occurring, they effectivelydetained him by continuing their investigation while on the Property which precluded him from being able to leave. [36] He bears the onus on a balance of probabilities to establish that he was in fact detained and if met, the Crown then must establishthe lawfulness of this detention. [37] Mr. Kitzke submitted the decision of R. v.

Lafrance, 2022 SCC 32, decided and published only weeks before this decision, insupport of his argument. [38] Lafrance involved police investigating a homicide and inviting a person, later deemed a suspect, to attend the police detachmentwhere ultimately he provided an inculpatory statement. [39] Counsel for Mr. Kitzke suggested this decision would be instructive with regards to the need to take a contextual approach to thequestion of whether a person is in fact detained. [40] Having reviewed Lafrance, this Court found it helpfully restated the objective test set out in R. v. Grant, 2009 SCC 32, and againin R. v.

Le, 2019 SCC 34. [41] The issue for this Court is whether Mr. Kitzke believed he had the right to walk away and end any discussion. This inquiry mustbe fact-specific and context-sensitive (R. v. Grant, (ON CA), at para 15) and requires three elements:

1. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual; 2. The nature of the police conduct; and 3. The particular characteristics or circumstances of the individual where relevant. ( Grant at para 44; Le at para 31; Lafrance at para 22 .) The Circumstances Giving Rise to the Encounter [ 42 ] At this first stage the court must review the circumstances of the encounter as they would reasonably have been perceived by Mr.

Kitzke and specifically, “whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling [him out] for focused investigation” ( Le at para 31(a); Grant at para 44(2)(a); Lafrance at para 29 ). [ 43 ] As already stated, this Court accepts COs Harris and Pauls’ evidence that they attended the Property in relation to the first incident. [ 44 ] Mr.

Kitzke was performing work related to his sewage-hauling company and while he would initially have been unaware of precisely why the COs had returned, once CO Harris began speaking to him, Mr. Kitzke would reasonably have felt that the COs were there in relation to that activity. [ 45 ] This was confirmed when CO Harris walked around the Sewage Truck and then instructed Mr. Kitzke to step away and not to touch the Sewage Truck. [ 46 ] Thus, while Mr.

Kitzke may initially have thought the COs had returned in relation to the first incident and to make “general inquiries” ( Lafrance at para 29 ), the COs quickly turned to a newly-focused investigation into his activities in relation to the Sewage Truck. [ 47 ] This Court finds this stage of the test favours finding a detention.

The Nature of the COs’ Conduct [ 48 ] This stage of the analysis focuses on the nature of the COs’ conduct throughout the encounter, including actions and language used, the presence of any physical contact, where the encounter occurred, the presence of anyone else and the duration of the encounter ( Lafrance at para 34 ). [ 49 ] Another factor present here is the regulatory nature of this interaction.

Lastly, a statement by a person in authority simply that the subject is not detained is not itself determinative – the entire interaction as it develops is to be realistically appraised ( Grant at para 32; Lafrance at para 36 ). [ 50 ] Weighing in favour of finding a detention, Mr. Kitzke was initially alone until he was joined, at his own urging, by his friend Mr. Wolstenholme. It was dark and the COs were all armed, uniformed and driving marked conservation vehicles which they parked on Mr. Kitzke’s property. Conservation Officer Harris at one point raised his voice and directed Mr.

Kitzke in an authoritative tone to step away from the Sewage Truck and to stop providing false answers, or face a charge for obstruction of justice. Lastly, COs Harris and Pauls were joined by COs Parker and Berger and they remained on the Property for several hours, until the Sewage Truck could be taken away by the towing company to the conservation warehouse. [ 51 ] Weighing against a finding that a detention existed at this stage, CO Harris explicitly told Mr.

Kitzke he was not detained nor arrested, nor that he was to remain in any particular spot – in fact, he was only directed not to interfere with the COs’ detention of the Sewage Truck. Likewise, no physical contact was used – and although Mr.

Kitzke remained in the general vicinity of the COs as they conducted their inspection and ultimately seized the Sewage Truck, no evidence was heard that the COs used deliberate physical proximity within a small, or any, space that would create an atmosphere that a reasonable person would conclude that leaving is not possible ( Le at para 50; Grant at para 50; Lafrance at para 41 ). [ 52 ] Although this occurred on the Property which was both Mr. Kitzke’s place of work and his residence, working in the highly- regulated sewage-hauling industry, such an inspection could not reasonably have come as a surprise to Mr.

Kitzke. Mr. Kitzke was aware he and his equipment were subject to inspection; he also admitted he was aware that he was responsible for the waste in the Sewage Truck once it was onboard. The COs attended at 6:00 pm, an hour this Court does not find unreasonable within the rural waste-hauling industry and it was Mr. Kitzke’s place of business – a choice Mr. Kitzke had made. None of the COs ever entered, or sought to enter, Mr. Kitzke’s residence itself. The observed dumping of sewage, regardless of quantity, was not occurring at an approved waste-disposal site.

Aside of CO Harris’ question about the origin of the Sewage Truck contents, which was permitted by the EMA as part of a lawful inspection, no other questions were put to Mr. Kitzke. Lastly, Mr. Kitzke himself agreed in cross-examination that while he felt he was detained and not welcome to leave, as everything was taking place right in front of his home, he also wanted to watch the COs to see what they were doing. [ 53 ] Taken as a whole, including the regulatory nature of this encounter, a person in Mr.

Kitzke’s position would reasonably have perceived that they were free to retreat into their home, or depart the Property. This weighs against a finding of detention. The Particular Circumstances of the Accused [ 54 ] The final factor requires this Court to consider, where relevant, Mr. Kitzke’s age, physical stature, minority status, and level of sophistication ( Grant at para 44(2)(c); Le at para 31(c); Lafrance at para 52 ).

[55] Mr. Kitzke is several years older than any of the COs involved and not a youth. Youth is noted by the courts as a factor that canaggravate the power imbalance between the state and an individual, as life experiences can be reasonably understood to shape a person’sperceptions, powers of discernment and knowledge (Lafrance at para 54). This Court notes that not only is Mr. Kitzke older than theCOs involved, he felt empowered enough to engage in a “back and forth” with CO Harris and stand up to him and even to attempt tododge his questions. Likewise, this Court does not find that Mr.

Kitzke is a member of a minority group, nor was Mr. Kitzke vulnerabledue to any disparity in physical stature to any of the COs. No evidence was heard that would lead this Court to find that any of the COssought to use their physicality, or a reasonable person in Mr. Kitzke’s position would perceive such a use by them. Lastly, Mr.

Kitzke isan experienced businessman within the sewage-hauling industry and was only asked questions related to the Sewage Truck and what wasbeing observed by the COs and once he admitted that the contents of the Sewage Truck originated from an off-site location, no furtherinvestigative questions were put to him. [56] In all the circumstances, this Court finds that Mr. Kitzke was not detained. Mr. Kitzke could reasonably have retired into hisresidence on the Property, or departed, and was not constrained by any of the COs. Mr.

Kitzke chose to remain on the Property and in thevicinity of the Sewage Truck and the COs in order to observe what they were doing. [57] As Mr. Kitzke was not found to be detained, there is no need to address the question of whether his Charter rights under s. 10(a)or 10(

b) were breached. 4. Did the inventory search of the Sewage Truck breach Mr. Kitzke’s s. 8rights? [58] Mr.

Kitzke urges this Court to find that the inventory search conducted of the Sewage Truck was in breach of his s. 8 rights as awarrantless search, and in the alternative, that if initially lawful, CO Harris exceeded that authority by the manner in which the searchwas conducted. [59] This Court finds that CO Harris was authorized at law to conduct an inventory search and further, that the inventory search wasitself reasonably conducted and therefore no s. 8 breach is found. [60] Where a vehicle is lawfully taken into police custody (in this case, pursuant to statutory authority), the police have the authority,if not the duty, to conduct an inventory search of its contents (R. v.

Russell, 2018 BCCA 330, at para 32). [61] While merely calling a tow truck to remove a vehicle does not justify an inventory search in every case, where that vehicle willbe subsequently impounded or a similar degree of control lawfully exercised over it by authorities, then an inventory search may bepermitted (R. v.

Harflett, 2016 ONCA 248 , at para 29). [62] An officer acting pursuant to a statutory authority must be able to point to a specific duty or authority to justify a search of thevehicle (Harflett at para 20). [63] Where lawful authority exists to permit authorities to take possession of a vehicle and require it be stored in a particular place, itis implicit in that legislation that authorities have the duty and responsibility to ensure the safety of the vehicle and its contents and inmeeting this duty, they must be entitled to conduct an inventory of the vehicle’s contents (R. v.

Strilec, 2010 BCCA 198 , atpara 57, 62). Where conducted, an inventory search may include looking within objects such as purses, wallets and bags found within thevehicle to determine their contents, but must be executed in a reasonable manner within the totality of circumstances (R. v. Wint, 2009ONCA 52 , at para 15). [64] Conservation Officer Harris acted under the authority of the EMA when he seized the Sewage Truck.

In exigent circumstances, s.107 authorizes the seizure and removal of anything he had reasonable or probable grounds for believing may provide evidence of thecommission of an offence under a designated enactment. Under ss. 111 and 112, CO Harris was permitted to seize anything validlyinspected and that he reasonably believed had been, was being used, or would afford evidence regarding a contravention. Having lawfulauthority to seize the Sewage Truck, a duty and responsibility was thereby imposed on CO Harris to then ensure the safety of the vehicleand its contents. [65] Mr.

Kitzke next alleged that in conducting the inventory search of the Sewage Truck, CO Harris exceeded his authority byopening and reviewing one or more of the documents located in the cab of the truck. It is alleged these documents contained bothbusiness and personal information. Conservation Officer Harris denied this act. [66] Mr. Wolstenholme testified that from a distance of 15-20 feet, he “glanced” at CO Harris who was sitting in the cab of theSewage Truck and saw CO Harris flip through a book that was consistent in size and colour with document books located there.Mr.

Wolstenholme agreed that the CO would have been four or five feet above him while seated in the Sewage Truck, which wasconsistent with photos put into evidence, as well as this Court’s observation of Mr. Wolstenholme’s own height. From those samephotos, it is evident that anyone seated in the truck would, if viewed from the front of the truck, have any view below their mid-torsoblocked by the dashboard and door of the truck. Neither Mr. Wolstenholme, nor any other witness, testified to CO Harris holdinganything at a level that a person located where Mr.

Wolstenholme agreed he was standing could physically have observed. The courttherefore finds Mr. Wolstenholme neither reliable nor credible in this regard and having accepted CO Harris’ evidence, this Court findsthe inventory search conducted was done in a reasonable fashion within all the circumstances. [67] Mr. Kitzke’s application under this ground is denied. 5. Did a requested extension for items seized breach Mr. Kitzke’s s. 8 rights? [68] Mr.

Kitzke next argued that items seized pursuant to executed search warrants were only authorized to be held for three months.Further, it is argued that CO Pauls sought ex-parte authority to extend this period to 12 months without justification or notice, and that

this breached his duty of full, fair and frank disclosure contrary to Mr. Kitzke’s s. 8 rights. No authority to support this position wassuggested by Mr. Kitzke, nor was any found by this Court and thus, the court finds no breach of Mr. Kitzke’s s. 8 rights. [69] Five detention orders in this matter were sought and granted as follows: November 13, 2018 for the Sewage Truck; November19, 2018 for things seized from the Sewage Truck pursuant to the execution of a search warrant, and for a sample from the sewagelagoon located on the Property; and November 30, 2018 for things seized from Mr.

Kitzke’s residence and business office located on theProperty, and for another sewage truck owned by Mr. Kitzke. All seizures were made pursuant to executed search warrants. As isstandard on the forms, all five detention orders state in part that: . . . having been satisfied that the detention of the thing(

s) seized is required for the purposes of any investigation or preliminary inquiry,trial or other proceeding, it is hereby ordered that pursuant to Section 490(1)(

b) of the Criminal Code of Canada or Section 24(2)(

a) ofthe Offence Act of British Columbia the articles set out in the Report to a Justice which were seized on ____ pursuant to a SearchWarrant (or otherwise in the execution of a peace officer’s duties) be detained for a period of three months, unless an application for anorder for further detention is made, or for another time period as provided by Provincial Statute, or proceedings are instituted in whichthe thing(

s) detained may be required. (Emphasis in original.) [70] On December 18, 2018, CO Pauls submitted a handwritten note to the JP.

This note stated that the original detention orders weresigned for a period of three months, but according to s. 107.1(2) of the EMA, seized items “receive an automatic 12 month detention”.Conservation Officer Pauls requested the detention periods be amended accordingly. [71] Under the EMA, ss. 107.1(1) and (2), and s. 112 (3), anything seized may be detained for up to one year before an orderauthorizing its continued detention is required. [72] Statutes are to be interpreted “in their entire context and in their grammatical and ordinary sense harmoniously with the schemeof the Act, the object of the Act, and the intention of the Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), at para21). [73] Both the wording in the detention orders and the EMA’s statutory language are clear – anything seized under the authority of theEMA may be detained for up to one year before another order for continued detention is required.

If that one-year period is reached, arequest for a further detention period would be required and then, pursuant to s. 24(5) of the Offence Act, notice to Mr. Kitzke wouldhave been required. Neither CO Pauls nor the JP who signed the detention orders had any authority to amend the statutory authority at s.107.1 or s. 112(3). The note by CO Pauls was not necessary by law and therefore, notice of CO Pauls’ purported “application” to Mr.Kitzke was likewise never required. The court finds no breach of CO Pauls’ duty of “full, fair and frank disclosure”. 6. Were seized items excessively detained in breach of Mr.

Kitzke’s s. 8 rights? [74] As noted, a variety of items were seized and detained, with detention orders issued on November 13, 19 and 30, 2018. Theseitems included two sewage-hauling trucks and their contents, business records for Mr. Kitzke and Kalia Resources Corp., and samplestaken from the sewage lagoon. As also previously noted, these detention orders authorized the detention of the thing(

s) seized which are“required for the purposes of any investigation or preliminary inquiry, trial or other proceeding”. The detention orders then furtherpermit this detention to continue until the end of the appropriate time period, or beyond that time period if an application is made, or until“proceedings are instituted in which the thing(

s) detained may be required” (emphasis added). [75] An information was sworn on November 7, 2019 in relation to the initial burn investigation on the Property and Mr. Kitzke. Thisinformation was later stayed by the Crown on June 2, 2020. [76] An information was sworn on March 5, 2020 in relation to the allegations before this Court. [77] The Crown argues that as proceedings in relation to the burn investigation did commence prior to the expiry of one year and thatmatter was stayed by the Crown after the proceedings before this Court were commenced, no overhold can be found. With respect, thisCourt does not agree. [78] Employing the Rizzo principle of statutory

interpretation to the detention authority provided by the EMA, it is clear to the courtthat the authorized one-year detention period cannot be so broadly interpreted so as to include the detention of seized evidence notrelated to a specific information. This Court heard little evidence differentiating between seized items and documents related specificallyto the burn incident, seized items and documents related specifically to the sewage-dumping allegations, and seized items and documentsthat may straddle both investigations.

Noting, however, that seized evidence included samples of waste taken from the Sewage Truck, asecond sewage truck and from the sewage lagoon, the inference can be drawn that this evidence, and potentially other evidence, relatedonly to the allegation before this Court and not the burn investigation. [79] As a result, this Court finds that any evidence seized that strictly relates to the sewage-dumping allegations before this Court wasoverheld beyond the statutorily permitted period. Any evidence that straddles both the burn and sewage-dumping investigations,however, was lawfully detained.

The court must now therefore examine if s. 8 of the Charter is engaged by this overheld evidence. [80] The detention of seized items in breach of the authorizing statute may attract the protection of the Charter. Where criminalcharges were laid and the detention provisions found at s. 490 of the Criminal Code engaged, the detention of seized items that were notin conformity with this search-and-seizure scheme has most recently been found unlawful and accordingly, any subsequent examinationof the detained item(

s) is a search (R. v. De Bortoli, 2012 BCSC 1528 , at para 96, 100; R. v. Gill, 2021 BCSC 152, at para 42,citing R. v. Craig, 2016 BCCA 154, at para 182). [81] In Craig, Madame Justice Bennett acknowledged the inconsistent judicial consideration that Criminal Code provisions, including

s. 490, have received. The court noted in particular the question of whether the provisions form part of continuing judicial supervisionover the conduct of a judicially authorized search and seizure, or whether they are administrative provisions directed at returning theproperty (para 162). The court provided a very useful discussion of this question at paras 165-176. [82] In R. v. Backhouse, (ON CA), the court reviewed the legislative history of ss. 489.1 and 490 of the CriminalCode.

The court found that while the legislation appeared in part to facilitate the return of seized items to their lawful owners, it was alsointended to provide a comprehensive scheme that would apply to all seizures made under the Criminal Code and other federal legislation(paras 104-107). There, the court then went on to hold that “[i]t does not necessarily follow, however, that the continued unlawfuldetention violated the appellant’s Charter rights. The initial search and seizure was lawful and complied with the Charter.

I need notdecide whether the subsequent failure to comply with s. 489.1 could render the initial lawful seizure unreasonable” (Backhouse at para115). [83] The failure to strictly comply with the statutory provisions of the Criminal Code will result in a Charter breach where theaccused had an ongoing residual privacy interest that rendered the continuing detention unreasonable (Craig at para 182). In the matter atbar, it was business-related records, documents and items that were seized under the authority of the EMA.

The EMA at s. 107.1referentially incorporates ss. 22 to 24.2 of the Offence Act, which includes provisions setting out the process to be followed to detainseized items, to extend that detention period and to permit the owner of a thing seized to apply for its return. These provisions do notmirror the provisions found at s. 490 of the Criminal Code, however, provide for a similar albeit less formal process. [84] This Court heard no evidence of any state intent to circumvent the Offence Act detention provisions.

It is apparent that thisoverhold was the result of inadvertence on the part of the state and perhaps confusion with regards to the evidence from the burn incidentmixed into the sewage-dumping incident. Evidence was also heard that in addition to vehicle documents including log books,registrations and certificates, work clothing and tools, a personal day planner was also seized that contained Mr. Kitzke’s handwrittennotes of day-to-day activities and reminders. This day planner also contained business records and notes with regards to businessactivities, a practice that counsel for Mr.

Kitzke suggested should not be held unusual. Mr. Kitzke chose to mingle personal notes of day-to-day activities and reminders with his business records and the court finds that in these circumstances, his privacy interests in thesenotes is outweighed by society’s interest in ensuring that a regulated business is operating in conformity with those regulations. [85] Generally, there is a diminished expectation of privacy in respect of records and documents produced in the ordinary course ofregulated activities (Jarvis at para 72).

In applying a contextual approach to the s. 8 analysis regarding regulatory prosecutions, courtsmust recognize a decreased expectation of privacy in respect of records that are produced during the ordinary course of business (R. v.Fitzpatrick, (SCC), at para 49).

This principle applies here and extends to equipment- and work-related contents,documents and records that are used or result from participating in a regulated activity, and that are detained beyond the statutory limit. [86] The Supreme Court of Canada has made clear that claims to privacy must be balanced against other societal needs, in particular,law enforcement, and that s. 8 protection extends to a person’s reasonable expectation of privacy: . . . The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

This limitation on the rightguaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlementto a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public'sinterest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order toadvance its goals, notably those of law enforcement. [Per Dickson J. in Hunter at pp. 159-60.] (Emphasis in original.) [87] As La Forest J. very eloquently stated in Fitzpatrick at para 42, “It ill lies in the mouth of someone who knowingly assumes anobligation for a beneficial purpose to argue that this obligation has the effect of denying him his rights.” [88] The court therefore finds that in the circumstances of this matter, involving the reduced expectation of privacy found withinregulated business activities and the regulatory nature of the search, seizure and prosecution of this matter, s. 8 of the Charter is notengaged.

A decreased expectation of privacy exists for records that are created and maintained during the course of business. [89] The application is therefore denied. The business-related documents, records and items seized in relation to the sewage-dumpinginvestigation are therefore admissible into the trial proper. _____________________________ The Honourable Judge D. Reeves Provincial Court of British Columbia