R. v. Pasco Seafood Enterprises Date:, 2011 BCPC 369

Citation: R. v. Pasco Seafood Enterprises Date: 20111125 2011 BCPC 0369 File No: 56433-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PASCO SEAFOOD ENTERPRISES INC. RULING ON APPLICATION OF THE HONOURABLE JUDGE E. D. SCHMIDT Counsel for the Crown: T. Gerhart / J. Lawn Counsel for the Defendant: B.R.B. Morahan Place of Hearing: Richmond , B.C. Date of Hearing: November 15, 2011 Date of Judgment: November 25, 2011 [ 1 ] The Public Prosecution Service of Canada is bringing two applications before the court. [ 2 ] The first is pursuant to Section 490 (2) (

a) of the Criminal Code for an order to detain documents seized pursuant to a search warrant on August 10, 2011 for a further nine months beyond the three months permitted by Section 490(2) . [ 3 ] The second application is pursuant to Section 70 (4) of the Fisheries Act to detain the proceeds from the sale of the fish seized from the defendant on August 8, 2011, again for a further nine months beyond the ninety days permitted by Section 70(3)(b). [ 4 ] Both Acts provide for an application to a Judge to extend the time normally permitted to hold items after seizure. [ 5 ] The Respondent, Pasco Seafood Enterprises Ltd., is applying to have the documents seized on August 10, 2011 returned to them, and for the proceeds of the sale of the fish seized and sold by the Fisheries Officers to be paid out to them.

Background [ 6 ] Certain agreements have been entered into between the Federal Government and some First Nations with respect to fisheries. The

agreement dated July 8, 2011 provides for First Nations fisheries to be conducted for the purpose, inter alia, of an Economic Opportunity Fishery. [ 7 ] The First Nations conducted a fishery in Johnstone Strait. The Fisheries Officers suspect that the 141,430 lbs. of salmon caught in that fishery was illegally caught. Some of the fish was purchased by the Respondents in the normal course of their business.

The Respondents say that they conducted their purchase with due diligence and did not know that the Fisheries would take the view that this fish was illegally caught. [ 8 ] Subsequently, on August 8, 2011, the Fisheries Officers seized fish and documents from the Respondent. The fish were sold by the Fisheries Department and the proceeds of sale were $90,000. [ 9 ] There is no application to retain the documents seized on August 8, 2011. [ 10 ] On August 10, 2011, pursuant to a search warrant, a further search of the Respondent’s premises was conducted.

The Officers did not seize computers, but printed and retained a number of documents from computers and seized a number of documents. [ 11 ] In pursuit of their investigation into the alleged illegal fishery and the sale of fish obtained during the fishery, the officers have obtained two Search Warrants, three General Warrants and six Production Orders. Only one of these relates to the Respondent. [ 12 ] No charges have been laid against the Respondent. The Application pursuant to Section 490(2) (

a) Criminal Code [ 13 ] The

section relating to extension of time for holding things beyond three months, seized pursuant to a search warrant, reads as follows: “

(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 thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or

b) proceedings are instituted in which the thing detained may be required.” [ 14 ] As no charges have been laid against the Respondent, the operative

section is Section (2)(a). According to that section, the test is that the court must be satisfied that, having regard to the nature of the investigation, a further detention of the documents seized is warranted. [ 15 ] Had charges been laid within the three-month period, the only test would be that the documents would be required for the proceedings. The Crown’s Argument: [ 16 ] The Crown says that this is an extensive investigation involving more than one First Nation and the various agreements between them and the Federal Government.

It also involves agreements, protocols and arrangements between the First Nations themselves. In addition, several purchasers are involved and the product was shipped throughout North America. The Crown is awaiting response on several Production Orders and is investigating what occurred and who was involved at all stages, including harvest, sale, transport, processing and final disposition of the fish or fish products. [ 17 ] The Respondents have not been deprived of any documents required to conduct their business.

Officer Trevor Tomlin deposes that all documentary evidence was photocopied on site and copies were provided to the Respondent.

In addition, all electronic documents, including emails were printed on site and the computers containing such electronic information were left with the Respondent. [ 18 ] The court is satisfied that the investigation has a level of complexity from the perspective of determining whether this was in fact an illegal fishery, given the First Nations involvement and the arrangements they may, or may not have, between themselves, and if so, what other persons associated with the distribution of those fish are implicated in the illegality.

The Respondent’s Argument: [ 19 ] The Respondents say that the retention of the documents is not required as they are prepared to admit the purchase and plead the defense of due diligence. [ 20 ] The Respondents further say that the execution of the search warrant breached their Charter Rights and the court should exclude the documents. [ 21 ] Both Respondent’s contentions fail. [ 22 ] While at some stage of the process documents may become unnecessary due to admissions, the court should not prejudice an investigation by speculating about the possible conduct of a trial or the strategies that either party may employ during the trial.

Nor should the court concern itself with Charter breaches that may be fully explored during a trial and, after exploration, whether a remedy should be granted under Section 24(2) of the Charter of Rights . The Court is mindful of the limitations placed on Provincial Court Judges in this regard at the Preliminary Hearing stage. That reasoning is also applicable for applications at the pre-charge stage.

Decision on the S.490 Application: [ 23 ] With respect to the Crown Application to extend the time to retain the documents, the court extends the period that the Crown is entitled to retain the documents seized on August 10, 2011 for a further period of nine months. The Application pursuant to Section 71(4) of the Fisheries ACT The Crown’s Application: [ 24 ] The application to extend the detention of the proceeds from the sale of the fish beyond 90 days is made pursuant to section 71(4) Fisheries Act . The Crown is applying to detain the $90,000 realized from the sale of the fish. [ 25 ] The

section permits the Minister to apply within 90 days after fish or a thing is seized to detain the fish or thing for a further period. Section 70(4) does not refer to ordering an extension of the time for detention of the proceeds realized by the disposition of fish. However, the Crown says the

section should be read broadly and the court should infer that the word “thing” should be read to include the proceeds of the disposition of the fish. [ 26 ] Counsel were unable to put any cases before the court interpreting the

section in that manner. [ 27 ] The Crown is contending that the court should read the word “thing” in subsection (4) to include “proceeds” realized from the disposition of fish. They say money is a thing and therefore the court can order the further detention of the money from the disposition of the fish under the subsection. [ 28 ] The words “fish or thing” are used together three times in the subsection. There is no mention of the words “proceeds” from its disposition. [ 29 ] The Crown says that the effect of not reading the word “proceeds” into the

section to be included in the word “thing”, is that the Crown would be able to apply to detain the fish seized within 90 days of the seizure, but would have to return any proceeds from the sale of any fish sold under section 70(3) prior to 90 days from seizure if they have not instituted proceedings within 90 days of seizing the fish. [ 30 ] The crown says that this creates an inconsistency in the Act because

section 73.1 provides that any fish or thing seized, or proceeds not forfeited, can be ordered to be applied against a fine.

Therefore, if an extension can be ordered for fish, but not for the proceeds, and the fisheries officer sells the fish prior to 90 days, and proceedings are not instituted within 90 days, and if proceedings are later instituted and if there is a conviction, the crown can use fish not sold to realize proceeds and apply them to a fine if a fine is imposed; but the proceeds realized from a sale prior to 90 days where proceedings are not instituted will not be available to be applied to a fine. [ 31 ] The Crown says that this inconsistency could not have been intended by Parliament.

The Respondent’s Argument: [ 32 ] The Respondent says the words used in the

section must be given their ordinary meaning. When this

section is referring to “things”, the

section itself modifies “things” as being seized “things”. As money was not seized, it can not be a “thing” being referred to in this section. [ 33 ] The Respondent also contends that the Act refers specifically and separately to “fish” and to “things”, and to the proceeds of the sale of the disposition of “fish” and “things”, or a combination of them in different sections. To read one entity into the other would be to defeat the intent of Parliament, which must be presumed to mean fish, when the word “fish” is used, thing when the word “thing” is used, and proceeds (money) when the word “proceeds” is used.

Analysis: [ 34 ] An example of the Respondent’s contention can be found in sections 70 and 71. [ 35 ]

Section 70 and 71 are repeated below for convenience. The words “fish”, “thing” and “proceeds” are in bold for the purposes of this reading. “70.

(1) A fishery officer or fishery guardian who seizes any fish or other thing under this Act may retain custody of it or deliver it into the custody of any person the officer or guardian considers appropriate.

(2) A person who is given custody of any fish or other thing under subsection (1) shall, on the request of a fishery officer or fishery guardian at any reasonable time, make the fish or thing available for inspection by or deliver it into the custody of the officer or guardian.

(3) A fishery officer or fishery guardian who has custody of any fish or other perishable thing seized under this Act may dispose of it in any manner the officer or guardian considers appropriate and any proceeds realized from its disposition shall be paid to the Receiver General. 71.

(1) Subject to this section, any fish or other thing seized under this Act, or any proceeds realized from its disposition , may be detained until the fish or thing or proceeds are forfeited or proceedings relating to the fish or thing are finally concluded.

(2) Subject to subsection 72(4), a court may order any fish or other thing seized under this Act to be returned to the person from whom it was seized if security is given to Her Majesty in a form and amount that is satisfactory to the Minister.

(3) Subject to subsection 72(4), where proceedings are not instituted in relation to any fish or other thing seized under this Act, thefish or thing or any proceeds realized from its disposition shall be returned to the person from whom it was seized. (

a) on the Minister’s decision not to institute proceedings; or (

b) on the expiration of ninety days after the day of the seizure or any further period that may be specified in an order made undersubsection (4).

(4) Where a court is satisfied, on the application of the Minister within ninety days after the day on which any fish or other thing isseized, that detention of the fish or thing for a period greater than ninety days is justified in the circumstances, the court may, by order,permit the fish or thing to be detained for any further period that may be specified in the order. [36] Another example is in

Section 72 which reads as follows: “72.

(1) Where a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order that anything seized under this Act by means of or in relation to which the offence was committed, or any proceeds realized from its disposition,be forfeited to Her Majesty.

(2) Where a person is convicted of an offence under this Act that relates to fish seized pursuant to paragraph 51(a), the court shall, inaddition to any punishment imposed, order that the fish, or any proceeds realized from its disposition, be forfeited to Her Majesty.

(3) Where a person is charged with an offence under this Act that relates to fish seized pursuant to paragraph 51(

a) and the person isacquitted but it is proved that the fish was caught in contravention of this Act or the regulations, the court may order that the fish, or anyproceeds realized from its disposition, be forfeited to Her Majesty.

(4) Where the ownership of any fish or other thing seized under this Act cannot be ascertained at the time of the seizure, the fish orthing is thereupon forfeited to Her Majesty.” [37] The Act clearly separates the entities “fish”, “thing” and “proceeds” and makes separate provisions for each of them. Fish, thingand proceeds are treated differently in some sections and the same in others. Had the legislators not been so specific about how each ofthose items was to be dealt with by fisheries officers and the courts, it may have been possible to argue that the one of those items mayinclude another of them in a broad

interpretation of the word. [38] Reference can also be made to S. 71(1) (quoted above) where the wording for the operation of that

section applies to; “any fish or other thing seized under this Act, or any proceeds realized from its disposition…” [39] In that section, an ordinary reading alerts the reader that the operation of that

section applies to those three items, either fish,other thing seized, or any proceeds realized from its disposition. [40] Sections 73 and 74 have a similar framework where the three subject matters of this scheme, “fish”, “thing seized” or “proceeds”realized from disposition are referred to separately or in different combinations. [41] The Crown refers to R. v Ulybel Enterprises Ltd., 2001 SCC 56 for the proposition that there should be a broad

interpretationof the provisions in the Fisheries Act. The broad

interpretation the crown is urging on the court is to read the word “thing” in section71(4) to include money or “proceeds” from the sale of seized fish. [42] The Supreme Court of Canada quoted the Nova Scotia Court of Appeal in R. v. Savory (1992), (NS CA),108 N.S.R. (2d) 245 where they stated at para. 14 in reference to the Fisheries Act that: “The Act and Regulations have been passed for the purpose of regulating the fishery; regulatory legislation should be given a liberalinterpretation.

A major objective of the Act and the Regulations is to properly manage and control the commercial fishery.” [43] The Court then went on to endorse the approach to the construction of statutes set out in Driedger’s Construction of Statutes (2nd ed. 1983), at para. 87; “Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” [44] With respect, the Crown, in seeking what it terms as a broad

interpretation of the word “thing” in section 70(4), is attempting toread in words to expand the operation of the

section rather than to give a broad meaning to the word “thing”. [45] For ease of reading, section 71(4) is reproduced again below. “

(4) Where a court is satisfied, on the application of the Minister within ninety days after the day on which any fish or other thing isseized, that detention of the fish or thing for a period greater than ninety days is justified in the circumstances, the court may, by order,permit the fish or thing to be detained for any further period that may be specified in the order.” [46] In the context of sections 70 through 77 of the Fisheries Act using the three entities either singly, in pairs, or, in some sections,all three together, Parliament must be taken to have intended that the operative portion of those sections apply to the specific entitiesmentioned in that operative section. [47] In this case, the court is being asked with reference to s. 71(4) to read the words “proceeds” of the disposition into the word“thing”.

They say money (proceeds of disposition) is a “thing”, and therefore Parliament must have intended, when they used the word“thing”, to include “proceeds of disposition”.

[ 48 ] In another context the Crown would be correct, as money is, in fact, a thing and an ordinary reading of the word thing can include money or any other non-animate object. [ 49 ] Where, however, as in this statute, the words “thing” and “proceeds” (money) are used separately, or together in different sections to apply to the operative words of those sections, Parliament must be taken to have been deliberate, and intended that there be no reading of one into the other unless specifically stated.

To do otherwise would be to re-write the legislation. [ 50 ] It is not proper for the court to speculate as to why Parliament created a difference as to how fish and proceeds from the sale of fish are dealt with for some purposes of the Act . In this Act , Parliament has applied different rules in some circumstances, depending on whether something is a fish, thing, or proceeds from the sale of either. “Things”, for instance can be returned to the owner on collateral. That is not the case for “fish”, nor is it possible for “proceeds”.

Some of that difference is no doubt a reasonable response to the peculiar interests present within the fishing industry. Perhaps the drafters were persuaded to allow fishing vessels to be returned on collateral until proceedings are concluded, so that a fishing season or seasons is not lost to a fishery or to consumers while matters are before the courts, sometimes for years. [ 51 ] Similarly, Parliament legislated in section 71(4) that “fish” or “things” could be the subject of an extension by court order.

Consistent drafting would require that “proceeds” would also be mentioned if Parliament intended proceeds to be the subject of an extension application. There is no reason why Parliament would deviate from its drafting scheme in this

section alone. To try to formulate a reason would be pure speculation. [ 52 ] What the court can do, rather than speculate, is to apply grammatical and ordinary meaning to the phrases within an Act before the court, and with a view to the scheme of the Act , the legislative context and what can be inferred about the intention of Parliament within those parameters, make a determination as to how to apply the facts of the case to the Act .

DECISION [ 53 ] In this case, the court finds that the drafting was deliberate and for reasons known to Parliament, it chose not to allow the detention of proceeds from the sale of fish or a thing seized to be retained beyond 90 days if no proceedings had been instituted within 90 days of the seizure. [ 54 ] The court finds that it does not have jurisdiction to extend the detention of the $90,000 proceeds of sale of fish currently held by the Receiver General. _____________________ E. D. Schmidt, P.C.J.