2013 NBCA 37, 2013 NBCA 37

COURT OF APPEAL OF NEW BRUNSWICK 81-12-CA PÊCHERIES BELLE-ÎLE FISHERIES LTÉE LTD., PÊCHERIES BAIE CHALEURS INC., McGRAW FRUITS DE MER (INVT.) INC./McGRAW SEAFOOD (INVT.) INC., 618099 N.B. INC., PÊCHERIES BELLE-ÎLE FISHERIES (INVT.) LTÉE LTD., GROUPE BELLE-ÎLE INC. and McGRAW FRUITS DE MER

(1995) INC./McGRAW SEAFOOD

(1995) INC. APPELLANTS PÊCHERIES BELLE-ÎLE FISHERIES LTÉE LTD., PÊCHERIES BAIE CHALEURS INC., McGRAW FRUITS DE MER (INVT.) INC./McGRAW SEAFOOD (INVT.) INC., 618099 N.B. INC., PÊCHERIES BELLE-ÎLE FISHERIES (INVT.) LTÉE LTD., GROUPE BELLE-ÎLE INC. et McGRAW FRUITS DE MER

(1995) INC./McGRAW SEAFOOD

(1995) INC. APPELANTES - and - - et - MARC R. GUIGNARD, MARC R. GUIGNARD CORPORATION PROFESSIONNELLE INC., PÈSE PÊCHE INC. and HER MAJESTY THE QUEEN RESPONDENTS MARC R. GUIGNARD, MARC R. GUIGNARD CORPORATION PROFESSIONNELLE INC., PÈSE PÊCHE INC. et SA MAJESTÉ LA REINE INTIMÉS AND BETWEEN : ET ENTRE : 82-12-CA MARC R. GUIGNARD and MARC R. GUIGNARD CORPORATION PROFESSIONNELLE INC. APPELLANTS MARC R. GUIGNARD et MARC R. GUIGNARD CORPORATION PROFESSIONNELLE INC. APPELANTS - and - - et -

HER MAJESTY THE QUEEN, PÈSE PÊCHE INC., PÊCHERIES BELLE-ÎLE FISHERIES LTÉE LTD., PÊCHERIES BAIE CHALEURS INC., McGRAW FRUITS DE MER (INVT.) INC./McGRAW SEAFOOD (INVT.) INC., 618099 N.B. INC., PÊCHERIES BELLE-ÎLE FISHERIES (INVT.) LTÉE LTD., GROUPE BELLE-ÎLE INC. and McGRAW FRUITS DE MER

(1995) INC./McGRAW SEAFOOD

(1995) INC. RESPONDENTS SA MAJESTÉ LA REINE, PÈSE PÊCHE INC., PÊCHERIES BELLE-ÎLE FISHERIES LTÉE LTD., PÊCHERIES BAIE CHALEURS INC., McGRAW FRUITS DE MER (INVT.) INC./McGRAW SEAFOOD (INVT.) INC., 618099 N.B. INC., PÊCHERIES BELLE-ÎLE FISHERIES (INVT.) LTÉE LTD., GROUPE BELLE-ÎLE INC. et McGRAW FRUITS DE MER

(1995) INC./McGRAW SEAFOOD

(1995) INC. INTIMÉES AND BETWEEN : ET ENTRE : 83-12-CA PÈSE PÊCHE INC. APPELLANT PÈSE PÊCHE INC. APPELANTE - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Pèse Pêche Inc. v. R., 2013 NBCA 37 Pèse Pêche Inc. c.

R., 2013 NBCA 37 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : L’honorable juge Larlee L’honorable juge Deschênes L’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: June 15, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 15 juin 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: February 14, 2013 Appel entendu : Le 14 février 2013 Judgment rendered: June 13, 2013 Jugement rendu : Le 13 juin 2013 Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : L’honorable juge Deschênes Concurred in by: The Honourable Justice Larlee The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Richard Counsel at hearing: For the appellant Pèse Pêche Inc.: Bertin Thériault For the respondent Her Majesty the Queen: Monica G.

McQueen Marc R.Guignard appeared in person For the respondent Pêcheries Belle-Île Fisheries Ltée Ltd., Pêcheries Baie Chaleurs Inc., McGraw Fruits de Mer (Invt.) Inc./McGraw Seafood (Invt.) Inc., 618099 N.B. Inc., Pêcheries Belle-Île Fisheries (Invt.) Ltée Ltd. and McGraw Fruits de Mer

(1995) Inc./ McGraw Seafood

(1995) Inc.: Charles R. LeBlanc, Q.C. Avocats à l’audience : Pour l’appelante Pèse Pêche Inc. : Bertin Thériault Pour l’intimée Sa Majesté la Reine : Monica G. McQueen Marc R. Guignard a comparu en personne Pour l’intimée Pêcheries Belle-Île Fisheries Ltée/Ltd., Pêcheries Baie Chaleurs Inc., McGraw Fruits de Mer (Invt.) Inc./McGraw Seafood (Invt.) Inc., 618099 N.B. Inc., Pêcheries Belle-Île Fisheries (Invt.) Ltée Ltd. and McGraw Fruits de Mer

(1995) Inc./ McGraw Seafood

(1995) Inc. : Charles R. LeBlanc, c.r. THE COURT By way of certiorari , the appellants contest the validity of search warrants executed while an investigation is ongoing, and no charges have yet been laid under the Fisheries Act or the Criminal Code . The application judge invoked his discretionary power and declined to consider the merits of the applications on the basis that it is incumbent upon the judge of a possible trial to decide the issue. In our opinion, the decision of the application judge is reasonable and he used his discretionary power judiciously. Therefore, the appeals are dismissed. English version of the decision of the Court delivered by

DESCHÊNES, J.A. I. Introduction [ 1 ] On June 22, 2011, fishery officers executed several search warrants issued under the Fisheries Act , R.S.C. 1985, c. F-14, and, some time later, a further warrant issued under s. 487 of the Criminal Code (conspiracy in relation to several offences under the Fisheries Act). In the informations, the investigating officers alleged, inter alia , that some of the appellants, but not their counsel, contravened the Fisheries Act by producing documents which contained false data, or by abetting a dockside observer to provide false data in the discharge of his duties.

In three separate applications for judicial review, seeking relief by way of certiorari , the applicants sought to have the warrants quashed, essentially on the grounds that the requirements of s. 487 of the Criminal Code and s. 49.1 of the Fisheries Act had not been met. [ 2 ] All of the applicants sought to have the warrants quashed. The appellant Pèse Pêche Inc. also sought a declaration that the search was unlawful and unreasonable within the meaning of s. 8 of the Charter , as well as [TRANSLATION] “a remedy under s. 24(1) of the Charter whereby the items seized and their copies would be returned”.

The application judge found that, in effect, even if the other applicants did not mention this remedy in their applications, they were all seeking the same.

In my opinion, given the joint position taken by the appellants throughout the proceedings before the application judge, his finding was correct. [ 3 ] A hearing was held on June 12, 2012, and, in an oral decision delivered three days later, the judge declined to consider the applications on their merits and to grant the remedy sought. [ 4 ] The appellants contest the decision under s. 784(1) of the Criminal Code , which provides that an appeal lies to this Court from a decision granting or refusing the relief sought in proceedings by way of certiorari .

At the time the appeal was heard, no charges had been laid against the appellants and the investigation was ongoing. Moreover, almost all of the items seized had been returned to the appellants. [ 5 ] The application judge invoked his discretionary power and declined to consider the merits of the challenge to the validity of the warrants.

He identified, correctly in my opinion, the only issue to be decided, which was whether he should hear and deal with the applications, as requested by the appellants, or instead [TRANSLATION] « leave it to the trial judge to hear those [applications] ». [ 6 ] In declining to settle the issue of the validity of the warrants, the application judge provided reasons which I would summarize as follows:

a) There is nothing in the record to suggest that the applications must urgently be heard prior to a possible trial. (Almost all of the seized items have been returned to the appellants in accordance with the relevant provisions of the Criminal Code and none of the appellants argued that an order quashing the warrants was urgently needed for any reason. That being said, there is no need to discuss the issue further.)

b) Despite the appellants’ allegations that the ultimate goal of the applications is only to obtain a declaration of invalidity, these certiorari applications are for the most part an attempt to jeopardize an ongoing investigation.

c) Further, this type of application is meant to be the equivalent of an application for a declaration pertaining to an allegedly unreasonable seizure within the meaning of s. 8 of the Charter , followed by a declaration that the evidence is inadmissible as a result of an analysis conducted prematurely under s. 24(2) or an attempt to obtain appropriate relief under s. 24(1) of the Charter .

This type of analysis is more similar to that of a trial judge who makes a decision after conducting a contextual analysis based on the evidence as a whole. [ 7 ] In my opinion, the application judge had sufficient information to allow him to exercise his discretion judiciously, and he did so when he refused to examine the applications on the merits.

II. Analysis [8] At the outset, it bears noting that the decision whether to grant or refuse a prerogative remedysuch as certiorari is ultimately a matter of discretion, exercised by the superior court as part of its general and inherent jurisdiction.Moreover, the scope of review by certiorari is very limited, being conducted “only where it is alleged that [a lower court] has acted inexcess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken tobe an excess of jurisdiction” (Gallant, LeBlanc and Steeves v.

R., 2009 NBCA 84, 352 N.B.R. (2d) 333, at para. 7). See, on point,Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, at para. 29; the comments of Richard J.A., writing for theCourt in Gallant, LeBlanc and Steeves v. R., at paras. 7-9; and those of Robertson J.A. in Chapelstone Developments Inc., Action MotorsLtd. and Hamilton v.

Her Majesty the Queen in Right of Canada, 2004 NBCA 96, 277 N.B.R. (2d) 350, at paras. 11-19. [9] Finally, the nature of this power is such that “[e]ven when jurisdictional error is found,certiorari is a discretionary remedy that may be refused” (see Gallant, LeBlanc and Steeves v. R., at para. 13). [10] The standard of review applicable to appeals from discretionary orders is set out in TheBeaverbrook Art Gallery v. Beaverbrook Canadian Foundation, 2013 NBCA 17, [2013] N.B.J. No. 51 (QL) (per Drapeau, C.J.N.B.): […] The impugned Order is quintessentially the product of an exercise of judicial discretion.

Like any other discretionary judicialdecision, it may be interfered with on appeal only if it is founded upon an error of law, an error in the application of the governingprinciples or a palpable and overriding error in the assessment of the evidence (see British Columbia (Minister of Forests) v. OkanaganIndian Band, [2003] 3 S.C.R. 371, 2003 SCC 71 at par. 43) or if it is unreasonable, in the sense that nothing in the record can justify it(see The Honourable R.P.

Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber Limited, 1994), at pp. 36-37and Secretary of State for Education and Science v.

Tameside Metropolitan Borough Council, [1977] A.C. 1014 (H.L.) Lord Diplock atp. 1064). [para. 8] [11] Applying this standard and having regard to the fact that the judge refused to examine theapplications on the merits, it is apparent we must decide whether the decision of the application judge is unreasonable by reason thatnothing in the record can justify it. [12] Even though no charges had been laid when the applications were filed, the investigation of theunderlying matter was ongoing. Most of the items seized had been returned to the appellants.

As mentioned, the investigators retainedcopies of the documents. The appellants seek an order compelling them to return the copies. The prosecution argued before the judgethat this was an attempt to jeopardize a long and difficult ongoing investigation, which would be compromised without the copies. Inaddition, the investigators have an unequivocal right to keep copies of the seized documents, which they were ordered to return to theappellants (s. 490(13) of the Criminal Code).

In my view, the judge was correct in finding that this was an attempt to jeopardize aninvestigation, which remains open. [13] Furthermore, it is difficult to imagine that the application judge could have ordered the return ofthe copies lawfully retained by the investigators without considering the validity of the warrants, and without examining whether s. 8 ofthe Charter had been contravened and whether the return of the copies to the appellants would constitute a remedy under s. 24(1) of theCharter, that would be appropriate in the circumstances.

Notwithstanding the fact that the appellants did not seek an order with respect tothe admissibility of the documentary evidence, one can reasonably ask whether the judge could order the return of the copies withoutdetermining their admissibility. The judge rightfully concluded that, behind a simple certiorari application seeking a declaration that thewarrants were invalid, there was a hidden intent to obtain a declaration concerning the admissibility of documentary evidence in apotential trial, a declaration which might put the trial judge in an embarrassing position (on this topic, see R. v.

Saunders, [1995] O.J. No.3621 (QL), Salhany J., at paras. 21-23). [14] Admittedly, a judge other than a trial judge may allow a certiorari application and declare awarrant to be illegal and invalid in circumstances where the interests of justice so require (see R. v. Sanchez, (ON SC),[1994] O.J. No. 2260 (Ont. Ct. (Gen. Div.)) (QL), and R. v. Branton, (ON CA), [2001] O.J.

No. 1445 (C.A.) (QL).However, it can be safely asserted that the circumstances would have to be exceptional for such a remedy to be granted where theCrown’s evidence is likely to consist mostly of copies of documents, which would allow the investigation to proceed. Of course, it ispossible that, in the end, this evidence might be found inadmissible as a result of an extensive analysis of the evidence as a whole withinthe framework of a trial. It is against this background that the application judge refused to examine the validity of the search warrants,preferring instead to use the approach set out in R. v.

Zevallos, (ON CA), [1987] O.J. No. 663 (QL). In Zevallos, theCourt held it was preferable for the trial judge to decide the issues pertaining to the validity of search warrants and violations of Charter

rights, as well as their impact on the admissibility of the evidence. [15] Additionally, this approach was adopted by this Court in King et al. v. Canada (AttorneyGeneral) et al. (1997), (NB CA), 187 N.B.R. (2d) 185, [1997] N.B.J. No. 106 (QL), when discussing pretrialchallenges to search warrants by way of certiorari: The second point raised, the timing of the application, is also important. Generally, Charter issues are best determined at a trial. Thereare valid reasons for not considering Charter infringements or deciding the constitutionality of governing legislation by way of a pretrialapplication.

Pretrial applications fragment and protract the proceedings, they tend to have an incomplete factual foundation and are notalways conducive to fashioning the appropriate s. 24(1) remedy. [para. 14] At para. 15 of King, the Court reiterated the following comments of the Court of Appeal of Ontario in Zevallos: “. . . the pretrial quashingof the search warrant by reason of its invalidity is, in a sense, an idle exercise.

Assuming that the search warrant is invalid in substance,in the sense that it goes beyond having mere minor or technical defects, and hence the accused’s rights under s. 8 of the Charter areinfringed . . . the evidence is still presumptively admissible unless the accused satisfies the requirements of s. 24(2) [of the Charter] ».(See also Valley Equipment Ltd. v. R. (1998), 198 N.B.R. (2d) (C.A.), (NB CA), [1998] N.B.J. No. 73 (QL), at para.28.) [16] Finally, I must point out that the findings of the application judge do not necessarily prejudicethe appellants’ rights with respect to the search and seizure.

If charges are laid, the accused will be able, at trial, to file a motion toexclude the evidence under s. 24(2) on the ground that the search was unreasonable. If no charges are laid, the persons claiming to havebeen aggrieved may be able to file a civil claim for damages. In the course of the proceedings, the appellants will have an opportunity toadvance the arguments on the merits that they were not able to raise before the application judge, and to obtain, should they besuccessful, the remedies they coveted prematurely in the case at bar. III. Disposition [17] In

summary, the foregoing analysis included most of the points of view which were expressedby the application judge and which supported his decision to refuse to examine the appellants’ applications on the merits. In my opinion,his decision was not unreasonable, but rather judicious, and this Court must not intervene. I would dismiss all of the appellants’ appeals. ____________________________________ ALEXANDRE DESCHÊNES, J.C.A. NOUS SOUSCRIVONS À L’AVIS ____________________________________ M.E.L. LARLEE, J.C.A. _____________________________________ J.C. MARC RICHARD, J.C.A.