R. v. Tingley, 2021 BCPC 24

Citation: R. v. Tingley 2021 BCPC 24 Date: 20210211 File No: 40090-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ROBERT TINGLEY RULING ON APPLICATION FOR EXTENSION OF A DETENTION ORDER OF THE HONOURABLE JUDGE B. FLEWELLING Appearing for the Crown: H. Russell, by phone Appearing on his own behalf: D.R. Tingley Place of Hearing: Courtenay , B.C. Date of Hearing: December 31, 2020 Date of Judgment: February 11, 2021 Background:

[ 1 ] On August 6, 2020, the Department of Fisheries and Oceans Canada (DFO) executed a search warrant on property owned by Mr. Robert Tingley resulting in the seizure of an Hitachi EX120 Excavator (the “excavator”) owned by Mr. Tingley. The search warrant and assistance order were granted on the basis that Fishery Officer Tadei had reasonable grounds to believe that Mr. Tingley had committed the offence of “causing harmful alteration, disruption and destruction to fish habitat” contrary to sections 35 (1) and 40 (1) of the Fisheries Act of Canada (the “ Act ”). [ 2 ] Under the authority of s. 490 (1) (

b) of the Criminal Code , Officer Tadei was granted an order that the excavator be detained for three months from the date of the seizure. [ 3 ] The detention order expired on November 6, 2020. The Federal Crown applies to extend the detention order until June 30, 2021. Notice of the application was provided to Mr. Tingley, who opposes the application. [ 4 ] The application for the extension was filed on November 16, 2020, and scheduled for hearing on November 17, 2020.

The hearing did not proceed that day due to a power outage at the Courtenay courthouse and it was rescheduled to December 31, 2020. [ 5 ] I had the benefit of submissions from Ms. Russell, counsel for the Public Prosecution Service of Canada, and from Mr. Tingley. In support of the application, Officer Tadei filed an affidavit summarizing the history of events and outlining the reasons supporting the application to detain the excavator. [ 6 ] The history outlined in the affidavit begins with events on May 15, 2020, when Officer Tadei delivered a written direction to Mr.

Tingley to remediate the excavation work that he had conducted along the Trent River, which runs through his property, by June 15, 2020. The written direction also stated that failure to comply would result in a summons to attend court, presumably following charges being laid. When Mr. Tingley told the officer that he would not comply, Officer Tadei warned Mr. Tingley that if he continued excavation works in the river, he “would be forced to seize the excavator in order to stop the continuation of the offence.” [ 7 ] As required by the direction, no removal plans were submitted by Mr.

Tingley and on July 28, 2020, after receiving information that Mr. Tingley was continuing to excavate along the river, Officer Tadei attended the property. Along with freshly excavated areas on Mr. Tingley’s property, he found that the excavator was being operated in the “wetted area of the river” on Mr. Tingley’s property by someone hired by Mr. Tingley. The operator advised Officer Tadei that Mr.

Tingley had directed him to lower the grade of the river and, among other things, carry out work intended to divert the flow of flood water. [ 8 ] Officer Tadei took photos, a video of the scene and a statement from the operator of the excavator. He directed the operator to cease work immediately. [ 9 ] Officer Tadei obtained and executed the first search warrant on August 1, 2020, for the purpose of seizing the excavator in order to stop the commission of Fisheries Act offences. The excavator was on adjacent land and Mr.

Tingley would not, or could not, assist in removing the excavator, requiring Officer Tadei to return with an assistance order on August 6, 2020. This time, the excavator was seized. [ 10 ] In his affidavit, Officer Tadei stated that he believed the work carried out by this operator, at the direction of Mr.

Tingley, “resulted in the harmful alteration, disruption or destruction of fish habitat contrary to Section 35 (1) of the Act . [ 11 ] He outlined the steps taken in the investigation and submitted a report to Crown counsel recommending the following charges pursuant to the Act : • Causing serious harm to fish; • Failing to comply with any part of a direction of a fishery officer; • Causing harmful alteration, disruption or destruction of fish habitat; and • Making changes in or about a stream without lawful authority. [ 12 ] Based on submissions from Mr.

Tingley, it is apparent that he has been involved in an ongoing disagreement with the DFO about the portion of the Trent River on his land and the works carried out in and around that river. The history goes back to 2005, about six years after he bought the land. I don’t need to go into the details for the purposes of this application, but essentially there is considerable disagreement over management of the flow of the river. Mr. Tingley advised that over the years, the DFO has brought a large number of experts onto his property to assess the river and its impact on the fishery.

At some point, the way the river flowed was changed and, according to Mr. Tingley, this has caused serious problems both for his land, and in his view, to the fish stock. The Legal Framework: [ 13 ] The relevant provisions of the Criminal Code that govern detention orders set out the following: Detention of things seized 490

(1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(

b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall, (

a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding ; or (

b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to

ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminaryinquiry, trial or other proceeding. Further detention

(2) Nothing shall be detained under the authority of paragraph (1)(

b) for a period of more than three months after the day of the seizure,or any longer period that ends when an application made under paragraph (

a) is decided, unless (

a) a justice, on the making of a

summary application to him after three clear days notice thereof to the person from whom the thingdetained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period iswarranted and the justice so orders; or (

b) proceedings are instituted in which the thing detained may be required. Disposal of things seized

(9) Subject to this or any other Act of Parliament, if (

a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or (

b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expiredand proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that thecontinued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (

c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or (

d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to itspossession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession ofany person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to HerMajesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law. Exception

(9.1) Notwithstanding subsection (9), a judge or justice referred to in paragraph (9)(

a) or (

b) may, if the periods of detention providedfor or ordered under subsections (1) to (3) in respect of a thing seized have expired but proceedings have not been instituted in which thething may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judgeor justice is satisfied (

a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and (

b) that it is in the interests of justice to do so. [Emphasis added] [14] In her submissions, Crown counsel referred to R. v. Classic Smokehouse and Leader Cold Storage, 2012 BCPC 232 .That case involved the seizure of property based on allegations of offences of “failing to keep records”, contrary to s. 61 (3) of theFisheries Act. In that case, the application was made before the detention order had expired and required a consideration of s. 490 (2),not, as in the application before me, s. 490 (9.1).

However, Judge Howard reviewed a number of authorities discussing the legalprinciples that inform the determination of an application to extend a detention order. Many of those principles have general applicationto any application to extend a detention order and have assisted me in reaching my decision. [15] As set out in para. 14 of her decision: … the overall objective of s. 490 of the Code is to achieve a fair balance between the property rights of individuals and the state’slegitimate interest in preserving evidence during an on-going investigation into criminal activity.

A justice acting under s. 490(2) mustkeep this objective in mind when determining whether a further period of detention is warranted. [16] The general principles applicable to the application before me can be distilled from paragraphs 15 to 18 of Classic Smokehouse(cites omitted): • A court is limited to the considerations set out in s. 490 (2) and does not consider Charter issues or the validity of thesearch warrant or manner of service; • There is no jurisdiction to determine if the items were lawfully seized and within the parameters of the search warrant; • The standard of proof the Crown must satisfy is not onerous and something less than a balance of probabilities; • There must be an indication that the Crown needs the property seized for the purposes set out in s. 490; • It must be more than a perfunctory, rubber-stamp procedure and some proof is required.

The materials in support of theapplication must be considered, reviewed and examined before granting or rejecting the application.

[ 17 ] There are four levels, or stages, of the detention process which require different considerations. The first level is the initial detention order as set out in s. 490 (1) (a). At this stage, the Crown must establish that the detention of a thing seized is required for the purposes of any investigation, or a preliminary inquiry, trial or other proceeding.

The detention must not be for a period longer than three months after the day of the seizure or when an application to extend is decided. [ 18 ] The second stage involves an application to extend an unexpired detention order beyond three months, when proceedings have not commenced.

At this stage, the Crown must satisfy the court that, after considering the nature of the investigation, further detention is warranted: s. 490 (2)(a). [ 19 ] At the third level, to obtain extension of an unexpired detention order that exceeds one year from the day of the seizure, the Crown is required to establish that, due to the complex nature of the investigation, further detention is warranted: s. 490 (3). [ 20 ] Further detention for any period of time may be ordered if the lawful owner of the thing seized consents: s. 490 (3.1). [ 21 ] The fourth stage concerns an application to extend a detention order that was expired when the application was filed and proceedings have not been commenced.

In those circumstances s. 490 (9.1) is applicable. [ 22 ] In contrast to the first three stages, if the detention order has expired when the application is made, the applicant must establish that the thing detained might “ reasonably be required ” for an investigation or other purpose mentioned in s 490(1) or (4) and, additionally, that it is in the interests of justice to extend the detention order.

If those two requirements are met, the court can extend the period of detention for any period considered necessary . [ 23 ] There are three reasons advanced in support of the application before me: • the excavator is still required as evidence to support the recommended charges; • continued detention is required so the excavator is available for a forfeiture application pursuant to s. 72 of the Fisheries Act ; and • concern that if the excavator is returned to Mr. Tingley, it would be used to commit a further and similar offence - harming fish habitat.

Might the excavator reasonably be required for the investigation or a preliminary inquiry, trial or other proceeding? [ 24 ] This requires some evidence relating to the offence, the nature of the investigation and investigative steps that are still needed. I am mindful that a judge must be careful not to embark on an assessment of the reasonableness of the investigation before the application ( Classic Smokehouse , para. 29).

However, in my view, the steps already taken in an investigation may be relevant to determine whether or not the item detained might still reasonably be required for an ongoing investigation and if additional steps are still required. [ 25 ] Officer Tadei’s affidavit outlines the course of the investigation to date. In addition to the initial investigative steps, an expert completed an onsite inspection of the Tingley property and, in a report dated on or about November 4, 2020, provided an opinion that harm was caused to fish habitat by the work completed on Mr.

Tingley’s property (para. 16, Tadei affidavit). [ 26 ] On November 5, 2020, Officer Tadei submitted a report to Crown counsel (RTCC), along with the expert report, and recommended charges for the four counts set out in paragraph 11 of my decision. On November 12, 2020, Crown counsel for the Public Prosecution Service of Canada (PPSC) asked Officer Tadei to prepare a supplemental report and told him that they would not review the RTCC package until it was complete.

Furthermore, Officer Tadei was advised that once the RTCC package was completed, PPSC counsel would require approximately six months to complete the charge review process (para. 15, Tadei affidavit).

At the time of this hearing, the supplemental report had not yet been submitted. [ 27 ] Crown counsel, when asked to outline the need for the continued detention of the excavator for the ongoing investigation, was candid and told the court that it was “not needed for the moment” but that she could not “preclude the possibility that a colleague would want some test on the excavator”. [ 28 ] On the evidence before me, I am not satisfied that Crown has established, to the requisite standard, that the further detention of the excavator might reasonably be required for the investigation, preliminary inquiry, trial or other proceeding.

I keep in mind that the test is not an onerous one and less than a balance of probabilities. However, there must be some evidence linking the need for continued detention of property to the ongoing investigation. Here, Crown counsel was only able to say that she couldn’t rule out that, in the future, someone else might possibly want a test on the excavator.

She was not able to articulate what kind of test that might be or how it would relate to the investigation of the alleged offences. [ 29 ] Crown counsel already has considerable evidence in the form of photographs, video footage apparently showing the excavator being used at or near the Trent River, expert evidence from an expert who conducted a site visit and analysis and, in addition, at least one statement from the operator of the excavator - all related to the alleged offences.

I am not able to find, even on a standard less than a balance of probabilities, that the continued detention of the excavator would reasonably be required to further or continue the investigation. This is not a situation like Classic Smokehouse in which Crown was required to undertake the time consuming and complex task of studying numerous and confusing documents coupled with a complex and cryptic accounting system.

That is not to say that all applications for an extension require that type of evidentiary foundation, but there must be something linking the need to detain the item seized and the ongoing investigation. [ 30 ] Other reasons were asserted for the continued detention of the excavator – to prevent the commission of another offence and in the event of a forfeiture hearing. The Criminal Code provisions establish the basis upon which further detention may be granted and prevention of another offence is not one of them. In my view, this is not a proper ground for detention.

[31] I have considered whether a forfeiture hearing would fall within the ambit of “other proceeding” and conclude that it does not.The words “other proceeding” follows the words “preliminary inquiry” and “trial”. These are proceedings that will, respectively,determine whether there is sufficient evidence to place an accused on trial and ultimately, to determine the innocence, or guilt, of anaccused person. [32] A proceeding has been defined in the following terms: “[T]he form in which actions are brought and defended, the manner of intervening in suits and of conducting them.” Eddy v.

Stewart, (SK CA), [1932] 3 W.W.R. 71 at 74 (Sask.C.A.). The term is usually broader in meaning than action and is alsoapplied to any step in an action. In its derivative sense, the term means the action of going onward, advancing. (Barron’s Canadian Law Dictionary) [33] Under the Code, a forfeiture order may be made after an accused is discharged or convicted of an indictable offence and the courtis satisfied that the detained property is offence-related. Similarly, under the Fisheries legislation, an order for forfeiture may be madefollowing a conviction.

In my view, this is not a proceeding intended to advance or continue the litigation, but an application for an orderafter the conclusion of the proceedings. [34] If I am wrong about this, I have considered the intent of the provisions in the Code. In the matter before me, Mr. Tingley has notyet been charged with an offence. It may be several months before charges are approved and an information sworn. Time to trial wouldadd an even longer period during which the property remains seized.

If Crown is able to detain seized items on the basis that those itemsmight be subject to forfeiture in the event of a conviction, property could be detained for lengthy periods of time. The provisions in theCode include safeguards to balance the interests of lawful owners of property and the public interest in the proper administration ofjustice. For example, even where proceedings are commenced, Crown must establish that the items detained may be required for theproceeding: s. 490 (2)(

b) and (3)(b). [35] I conclude that, in these circumstances, Crown has not established that the continued detention of the excavator for the purposeof facilitating a possible successful forfeiture order is contemplated by the provisions of s. 490. [36] However, if I am wrong in this conclusion, I go on to consider the second part of the test under s. 490 (9.1). Is further detention in the interests of justice? [37] The Crown must also establish that an extension of the detention order is in the interests of justice.

Officer Tadei says that anextension is in the interests of justice because the offence being investigated is serious (para. 18, Tadei affidavit). [38] Crown counsel asserts that it is in the interests of justice because the reason the detention order expired prior to the applicationbeing filed was a lack of court time and not because of delay on the part of the officer. [39] I was not provided with any case law discussing or applying this requirement. However, the phrase “in the interests of justice” isdiscussed in many other contexts in both civil and criminal law.

It requires a balancing and a consideration of various and, at times,competing interests. [40] In the context of the application before me, one important interest relates to the continuing investigation of a fisheries offence.Fisheries offences are serious because they impact a highly vulnerable resource. Furthermore, they are often difficult to detect because ofthe sheer size of the fishery and the few number of fisheries officers tasked with the detection and investigation of such offences.

Thepublic, and society as a whole, has an interest in seeing offenders investigated and ultimately prosecuted, thereby protecting the fisheries. [41] As noted at the outset of this decision, this interest must be balanced with rights of the lawful owners of seized property.

Seizureof property may result in financial loss, personal hardship or other negative consequences arising from the loss of use of that propertyand this must also be considered in assessing whether it is in the interests of justice to order further detention. [42] Officer Tadei referred to the timing of his application at para. 20 of his affidavit: At the time when I realised the detention order for the first three months was approaching expiry I contacted the Justice of the Peace Coxat the Courtenay Court Registry to set a hearing to have it extended.

The Justice Cox contacted the Judicial Case Manager for the nextavailable court date when this matter could be heard; the next available time was not until November 17, 2020. [43] During Crown counsel’s submissions on this point, I noted that the application, although filed on November 16, 2020, wassigned by Officer Tadei on November 10, 2020, after the original detention order had expired. Crown counsel advised me that theofficer prepared the application after being told that the first available date for his application was November 17, 2020.

She furtheradvised that on November 17, 2020, there was a power outage at the Courtenay courthouse and the hearing of the application wasadjourned to December 31, 2020. [44] In these circumstances, I do not consider that there was a lack of court time, or that even if it was, it is an appropriateconsideration in determining whether continued detention is in the interests of justice. It is always open to the Crown to file anapplication to extend a detention order well prior to the expiry date.

For example, in Classic Smokehouse, the fishery officer filed anotice of application in May, approximately two months after the seizure, although the hearing did not begin until later in June with acontinuation in July. By virtue of filing the application before the expiry of the detention order, the applicable

section of the CriminalCode was s. 490 (2) and not, as here, s. 490 (9.1). This is not meant to be critical of the officer in this case who has clearly been workingextensively on this investigation. [45] Mr. Tingley resides on and owns three adjacent rural properties. The Trent River flows through at least one of the properties. Inhis submissions, he told the Court that after the DFO changed the flow of the river, the flood levels are higher and, in his view, harmful

to the fish habitat. It is clear to me that, although he has known Officer Tadei for three or four years, the relationship between Mr. Tingley and the DFO has deteriorated. [ 46 ] Mr. Tingley is opposed to the application for an extension of the detention order. He uses the excavator extensively for repairs, fixing things and other works on his land. He also rents it out to others and has or will incur a potential loss of revenues if it is not returned. Crown counsel, in reply, suggested that Mr. Tingley owns another piece of equipment that he could use for projects on his property, but Mr.

Tingley advised that this is just a garden tractor. I accept that this is not comparable in size or functionally to the excavator that was seized. [ 47 ] In balancing the interests of justice, I have considered my conclusion that the Crown has not satisfied me that the excavator might reasonably be required for a purpose in s. 490 (1) or (4) as well as the impact to Mr. Tingley if he continues to be deprived of the use of his excavator. [ 48 ] I have concluded that Crown has not established that the continued detention of the excavator is in the interests of justice.

Conclusion: [ 49 ] The Crown’s application is dismissed and the excavator is to be returned to Mr. Tingley. [ 50 ] The parties are at liberty to appear before me for directions if necessary. _____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia