Bignell v. Canada (Attorney General), 2022 NSSC 71

SUPREME COURT OF Nova Scotia Citation: Bignell v. Canada (Attorney General) , 2022 NSSC 71 Date: 20220321 Docket: Hfx No. 506518 Registry: Halifax Between: Frances Bignell Applicant v. Attorney General of Canada Respondent Decision Judge: The Honourable Justice Denise M. Boudreau Heard: January 6, 2022, in Halifax, Nova Scotia Final Written Submissions: February 7, 2022 Counsel: Richard W. Norman, for the Applicant Patricia C. MacPhee, for the Respondent By the Court: [ 1 ] The applicant has put forward an application in court seeking a declaration that sections 51, 70, and/or 71 of the Fisheries Act , R.S.C., 1985, c. F-14 (hereinafter “the Act ”) violate

section 8 of the Canadian Charter of Rights and Freedoms and are therefore unconstitutional. [ 2 ] More specifically, she puts forward that the noted sections are in breach of

section 8 because they:

a) permit a fishery officer to seize any thing that he or she believes was obtained by or used in the commission of an offence under the Fisheries Act or will afford evidence of an offence under the Fisheries Act and retain custody of the seized item; and

b) permit a fishery officer to hold the seized property indefinitely; and

c) do not require the fishery officer to notify (or attempt to notify) the owner of the seized property that it has been seized and why it has been seized; and

d) do not provide any opportunity for the owner of the seized property to apply to the Court for the return of the seized property on reasonable grounds; and

e) do not require that the owner of the seized property be given notice of any application to the Court on the part of the Minister to extend the period of time that the Minister may hold seized property. Facts [ 3 ] The salient facts were put before me by way of affidavit. [ 4 ] The applicant is the registered owner of a 2020 Toyota Tundra truck. The applicant states that the truck was gifted to her by her son James Bignell sometime during 2020. [ 5 ] The Registry of Motor Vehicles information before the court at the time of the hearing was not entirely clear.

However, since that time I have been provided with an additional affidavit, which I am admitting with the consent of respondent counsel, showing that the truck was registered to the applicant in September 2020.

[ 6 ] In April 2021, James Bignell asked the applicant to borrow her truck for a few days. He told her he needed it to pick up lobster traps, and he also told her who would be with him. The applicant agreed. [ 7 ] During this time, fisheries officers from the federal Department of Fisheries and Oceans (“DFO”) were conducting enforcement activities in relation to suspected unauthorized elver fishing in the area. During the night of April 15/16, 2021, officers conducted surveillance and observed what they believed to be illegal elver fishing in the area of Little River, Nova Scotia.

The suspects were seen carrying items and placing them in the back of a truck. [ 8 ] As the vehicle was leaving, it was stopped by the officers. According to the officers, inside the truck were James Bignell and three other individuals, and the back of the truck was found to contain a quantity of elvers in buckets. [ 9 ] The truck was seized at that time by officers as offence-related property pursuant to the Act (i.e., “used in the commission of an offence”).

This truck was the applicant’s Toyota Tundra, as described hereinabove. [ 10 ] James Bignell then contacted the applicant and told her that he had been arrested, and that her vehicle had been seized by DFO. The applicant contacted DFO directly and they confirmed what had occurred. [ 11 ] The vehicle remained in DFO’s possession for a number of months, although no formal charges were laid. In late June 2021, the Crown attended before a provincial court judge and was granted a detention order for the vehicle. This was done ex parte (as permitted by the statute).

The order was granted June 28, 2021, and was set to expire on January 11, 2022 (unless charges were laid, further orders were granted, or a decision was made not to proceed further). [ 12 ] At the time of the hearing before me (January 6, 2022), according to counsel’s most recent information, no charges had yet been laid and no further order had been sought or granted. [ 13 ] In the supplementary affidavit from the applicant dated February 7, 2022, which I have admitted by consent, she indicates that the truck was returned to her on January 12, 2022. [ 14 ] The applicant’s position is that the seizure and detention of her vehicle (from April 2021 to January 2022) was unreasonable, and should be deemed a breach of

section 8 of the Charter . [ 15 ] The applicant acknowledges that the fishery is a highly regulated industry, with lengthy and varied rules and regulations. She further acknowledges that many of these fisheries enactments can generally be justified on conservation grounds to protect this important and lucrative activity. [ 16 ] However, notes the applicant, one should also take notice that these laws are aimed at regulating the conduct of those persons engaging, or wishing to engage, in the fishing industry. In other words, such a person must abide by the rules in order to participate.

In that context, as the applicant herself is not a participant in any fishery activity, in her view the concerns relating to conservation should be inapplicable to her. The applicant further notes that she is an “innocent bystander” in the present matter; that is, if any breach of the Act was committed, it was not committed by her.

The seizure and detention of her vehicle, according to the applicant, is therefore inappropriate and unjustified. [ 17 ] More specifically, the applicant argues that the failure of the Act to require notice to the owner of property at the time property is seized is a fatal omission from a constitutional perspective. She also notes the lack of any requirement to provide notice when the Crown seeks an order of detention (or any further such orders) is a further breach of her Charter rights.

Furthermore, she points out, the Act does not provide any maximum amount of time that property can be held under continued orders of detention, which, in her view, is also unreasonable. [ 18 ] Lastly, says the applicant, the failure of the Act to provide a mechanism for an owner to seek the return of property in the interim (without conditions) is also unreasonable and should be deemed a breach of

section 8 . [ 19 ] The respondent’s view is that the impugned sections are constitutional and that no breach of

section 8 has occurred here. They argue that notice to owners of all seized property would constitute an unreasonably onerous task for officers, and is not required for a seizure to be reasonable. They further note that orders of detention are issued by courts, not by the respondent; and, lastly, that there are mechanisms for return of seized property which were available to the applicant here.

Analysis [ 20 ] The relevant sections of the Act provide: 51 A fishery officer or fishery guardian may seize any fishing vessel, vehicle, fish or other thing that the officer or guardian believes on reasonable grounds was obtained by or used in the commission of an offence under this Act or will afford evidence of an offence under this Act , including any fish that the officer or guardian believes on reasonable grounds (

a) was caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations; or (

b) has been intermixed with fish referred to in paragraph (a). … 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 fisheryguardian at any reasonable time, make the fish or thing available for inspection by or deliver it into the custody of the officer orguardian.

(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 inany manner the officer or guardian considers appropriate and any proceeds realized from its disposition shall be paid to the ReceiverGeneral. … 71(1) Subject to this section, any fish or other thing seized under this Act, or any proceeds realized from its disposition, may be detaineduntil the fish or thing or proceeds are forfeited or proceedings related 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 itwas 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, the fish orthing 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) A court may, by order, permit the fish or other thing seized or any proceeds realized from its disposition to be detained for anyfurther period that may be specified in the order if the Minister makes a request to that effect before the end of the period of detention inquestion and the court is satisfied that the order is justified in the circumstances. [21] I will start with the two arguments put forward in the application that are related “seizure” issues, presented as (

a) and (c). Thesections of the Act are contrary to

section 8 of the Charter because they:

a) permit a fishery officer to seize any thing that he or she believes was obtained by or used in the commission of an offence under theFisheries Act or will afford evidence of an offence under the Fisheries Act and retain custody of the seized item; and …

c) do not require the fishery officer to notify (or attempt to notify) the owner of the seized property that it has been seized and why it hasbeen seized. [22] As I understand the applicant’s submission on these points, it is the following: that as the owner of the vehicle, she had areasonable expectation of privacy in it; that she was not given formal notice of its seizure; that the seizure of an item without notice to itsowner, while permitted under the Act, is an unreasonable seizure; and, therefore, that the sections of the Act which allow for such aprocedure to take place are in breach of

section 8 of the Charter. [23]

Section 8 of the Charter guarantees the right to be secure from unreasonable search or seizure. The general test relating tosection 8 is clear and has been set out by the Supreme Court on multiple occasions. For a search or seizure to be reasonable, it must beauthorized by law, the law itself must be reasonable, and it must be carried out in a reasonable manner (R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Caslake, (SCC)). [24] The Charter is silent as to rights to property. It is generally accepted that

section 8 is a protection directed mainly towardsprivacy rights (Hunter v. Southam Inc. (1984), (SCC), 14 C.C.C. (3d) 97; Milton v. R., [1985] 4 C.N.L.R. 103 (B.C. Co.Ct.)). [25] The applicant accepts that the seizure of her truck was authorized by law, but argues that the law is unreasonable and that it wasnot carried out in a reasonable manner. The applicant also points out that while the seizure was authorized by law, it was warrantless andso the burden is on the state to demonstrate that it was reasonable. [26] As a starting point, and in general, the caselaw will speak to an applicant needing to show a reasonable expectation of privacyin the circumstances in order to advance a

section 8 claim. Here, the applicant provided a lengthy submission about having such anexpectation in relation to her truck. While this issue is not the main point of debate here, in my view, it does require some commentary.

[27] In general terms, the owner of property (such as a vehicle) would have a reasonable expectation of privacy in it and itscontents. In this particular case, of course, that would be a somewhat reduced expectation by the fact that the applicant had lent thevehicle to her son. [28] Caselaw has established that the fisheries are a highly regulated industry to which a lower expectation of privacy attaches, atleast in some respects (R. v. Ulybel Enterprises Ltd., 2001 SCC 56 , [2001] 2 S.C.R. 867).

However, the applicant points out thatshe is not involved in the fishery, that she never agreed to be subject to its rules and, therefore, she should not be held to that lowerstandard. While I take the applicant’s point, I would note that according to her own evidence the applicant was also aware that her sonwas borrowing the truck for a “fishery” purpose. She agreed to let him borrow it, on that basis and for that purpose.

Such certainlydilutes her argument that this situation should not be assessed in the context of fisheries regulations. [29] In any event, in the final analysis, that is not the crux of the debate here and I see no need to spend a great deal of time on it.The applicant was the owner of the vehicle; therefore, for the purpose of a

section 8 analysis, I will start from the premise that theapplicant had at least some reasonable expectation of privacy in the vehicle. [30] The more significant question is whether the seizure of a piece of property pursuant to

section 51 of the Act, without formalnotice to its owner, can be said to be unreasonable. [31] In support of her position, the applicant has pointed to other federal statutes that provide schemes for seizure of property andargues that, in those statutes, Parliament has provided alternative processes. She agrees that those statutes are constitutionally sound. [32] Of course, as was pointed out by the respondent, the mere fact that other statutes provide different processes does notnecessarily make any one of them unconstitutional. [33] In any event, I have reviewed those statutes.

I have been given no examples of federal statutes which require formal notice to begiven to the owner of seized property at the time of its seizure. [34] A Criminal Code seizure requires an initial Report to Justice which may result in a three month detention order (section490(1)); such a process is ex parte. Where the Crown seeks an order for detention past the initial three months, they are to provide noticeof the application to “the person from whom the thing detained was seized”.

The statute, quite pointedly, does not use the word “owner”. [35] The Customs Act and the Canada Marine Act have different processes again, but neither statute requires notice to an owner atthe time of seizure. [36] Of course, there are clear provisions in some federal statutes for notice to owners (or persons claiming an interest in property)at the time of a requested forfeiture of property. That is, quite obviously, a very different matter.

Such an order would forever extinguishall claims to the property; therefore (and appropriately) those statutes require notice anyone who might be affected by such an order (seeMilton, supra). [37] The applicant strenuously argues that notice to owners of property, at the time of seizure, should be a constitutionalrequirement. However, she has provided me with no caselaw as authority for that proposition. [38] The caselaw I have been provided is in the nature of unsuccessful challenges of a somewhat similar nature to the Act, or toother federal statutes. [39] In R. v.

Leahy, 2004 NSPC 62, fishery officers boarded a fishing vessel and seized a number of documents, which the Crownlater sought to use against the accused at his trial. The accused sought a declaration that sections 51 (permitting seizure) and 71(permitting detention pending forfeiture) of the Act contravened

section 8 of the Charter. That application was dismissed. [40] The Leahy case could be distinguished from the present one as it involved documents required by law to be kept by fishermen,therefore attracting no (or precious little) expectation of privacy. In that context, at least, the court found the sections did not breach theCharter. [41] In R. v.

MacFarlane (1992), (PE SCAD), 76 C.C.C. (3d) 54 (PEI CA), the court was dealing with theNarcotic Control Act (as it then was), and specifically the fact that it contained no requirement for a “report to justice” relating to itemsseized (as is found in the Criminal Code). The Prince Edward Island Court of Appeal accepted that the impugned seizure provisionswere reasonable and did not breach the Charter. (It may perhaps bear noting, at this point, that there is no “report to justice” requirementin the Fisheries Act either.) [42] In R. v.

Ulybel (supra), the Supreme Court of Canada referenced with approval the provisions of the Act dealing with seizure ofproperty, calling its processes for same “exhaustive” (see paragraphs 886-887). [43] In Re Barnable and The Queen (1986), (NL SC), 27 C.C.C. (3d) 565 (Nfld S.C.T.D.), the Crown hadsought an initial detention order of an exhibit from the Provincial Court.

The owner of the item did not receive notice of the application,as was the usual practice, since the legislation permitted the application to be made ex parte. [44] The judge refused to sign the order because of the lack of notice to the owner, and concluded that such a procedure constituteda breach of

section 8 of the Charter. The matter was referenced to the superior court, seeking a mandamus order requiring the judge toproceed with the application on its merits. [45] The Newfoundland Supreme Court granted the order for mandamus. They rejected the notion that an application for adetention order required notice to an owner, in order to pass constitutional muster: 24. The state has a solemn obligation to protect the life, property and liberty of all citizens and in the zealous pursuit of that noble

precept, to apprehend those who commit crimes. The swift gathering of evidence by the police is a vital component of that process.Evidence lawfully gathered by investigating police officers and which is to be used in court must generally be kept in the possession ofthe Crown until the investigation is completed or the matter goes to trial. The owner of such evidence, whether it was seized from thatowner or not, has no entitlement to it if the judge is satisfied that it is required for the investigation or the court.

When once the Crownsatisfies the court of the need to retain such evidence, that is the end of the matter. The fact that the owner of the goods may want themback does not detract from the right of retention when once the court has decided same is necessary. The owner's rights are adequatelyprotected under the Criminal Code. The seizure of the goods in this case meets the test of reasonableness laid down by the SupremeCourt of Canada in Hunter et al. v. Southam Inc. (1984), (SCC), 14 C.C.C. (3d) 97, 11 D. L. R. (4th) 641, 2 C.P.R. (3d)1. 25.

If the police were required to give notice to all owners of goods seized during the course of their investigation of a hearing before ajustice to determine whether such goods should be detained, the court calendars would be clogged and the detection of crime would beseriously impeded. A large number of investigations into suspected crime are going on every day in Canada, probably running into thethousands.

It would be totally unreasonable and counterproductive if it was necessary to serve notice before a hearing of the kind underconsideration could be conducted by a judge to decide whether the detention of such goods was necessary for the purpose enumerated inthe Code. Such cumbersome and totally unnecessary procedure would so seriously impede the speedy investigation of crime and theearly apprehension of criminals that the life and liberty of citizens the Charter so admirably protects would be at risk.

Such assumptionthe Charter does not contemplate or provide. (emphasis is mine) [46] It is difficult to argue with that logic in the present context as well. [47] I have no doubt that Canadian fisheries officers seize all manner of property pursuant to this

section of the Act on a constantbasis. These items are required either as evidence for a court proceeding, or as alleged “offence-related property” for which forfeituremay/will be sought. Their seizure and (temporary) detention hinges on whether they meet those criteria, and not upon the wishes of thepossessor or owner. [48] Requiring notice given to the “owner” of each individual item of seized property, it seems to me, would lead investigatorsdown many time-wasting rabbit holes.

Firstly, the identity of the “owner” of property is not always evident and may require activeinvestigation. [49] Admittedly, in the case of a vehicle, one could presumably identify the “registered owner” according to the province’s motorvehicle records. However, I note that such does not necessarily preclude a dispute as to “ownership”, even in those cases (see, forexample, Allianz Canada Inc. v. Kelsey, 2005 BCSC 1341). [50] But what of all other kinds of property for which there is no registry?

It would be an onerous burden indeed for fishery officers,all over this country, to try and determine the actual “owner” of each and every piece of seized material. Frankly, I question how theycould possibly do so. What would be considered sufficient evidence of ownership? What of cases where ownership is disputed betweentwo or more parties? What of the case of inherently “illegal” material where no one will acknowledge ownership of the property? Whatof the case where it is later discovered that the “notified” owner was, in fact, not the owner?

Within any investigation, certain peopleinvolved in the process will, quite rightly, invoke their right to silence in response to any questions about ownership or otherwise.Problematic scenarios abound. [51] The applicant submits that since she did not receive notice of the seizure of her vehicle, I should find the seizure of this vehicleto be a breach of

section 8. Such would entirely invalidate the seizure and detention of that vehicle which, in my view, is contrary to theSupreme Court of Canada’s remarks in Ulybel, where they approved of the Act as containing a complete code for the seizure anddetention of property. [52] I have moved on to consider the suggestion, in the alternative, that the Act should provide that “reasonable efforts” should bemade to find and notify the owner of seized property rather than requiring notice in every case.

Frankly, I fail to see much realisticdifference between those two suggestions. [53] The logistical and legal problems, and disputes, would still arise in cases where an owner could not be identified, found, ornotified. The expression “reasonable efforts” has caused much litigation in many contexts, and I have no doubt would cause muchuncertainty and confusion here.

Most concerningly, and unreasonably, it would result in cases where the validity of the seizure anddetention of certain items might remain in “limbo”; i.e., subject to that uncertainty. [54] As I have already stated, none of the other statutory seizure provisions brought to my attention (from the Criminal Code,Customs Act, and Canada Marine Act) impose the obligation to identify and formally notify an owner at the time of seizure.

Theapplicant has quoted from those other federal statutes with approval, and acknowledged that their provisions do not breach the Charter.It has not been made clear to me why only the Fisheries Act should require formal notice to owners of seized property as a constitutionalrequirement, while other federal statutes do not need to. [55] In the final analysis, I am not persuaded that notice to owners of property in the case of its seizure pursuant to the Act is (orshould be) a constitutional requirement.

In my view, the statutory scheme that exists in the Act, and in particular the fact that it is silent asto formal notice to owners of property in the case of seizure, is reasonable. [56] The applicant further argues that the impugned sections of the Act are contrary to

section 8 because they (grounds (b), (d), and(

e) of the application):

b) permit a fishery officer to hold the seized property indefinitely; and …

d) do not provide any opportunity for the owner of the seized property to apply to the Court for the return of the seized property on

reasonable grounds; and

e) do not require that the owner of the seized property be given notice of any application to the Court on the part of the Minister to extend the period of time that the Minister may hold seized property. [ 57 ] As to (e), I have already addressed the issue of notice to property owners at the time of seizure; the same reasoning applies to the detention of the property. For the reasons I have already given (and in particular the case of Barnable , supra) the concerns raised by issue (

e) in this application do not cause me to find a breach

section 8 of the Charter within the impugned sections. [ 58 ] As to issue (b), it must be understood that fisheries officers are not entitled, pursuant to the Act , to “hold property indefinitely”.

While there is an initial detention period of up to 90 days permissible without court order, the Act provides that an officer must then seek court approval if s/he wishes a longer period of detention (assuming no charges have been laid). [ 59 ] A justice receiving such a request would be duty-bound to deal with it judiciously; that is to say, to determine whether the applicant has met the requirements and whether continued detention is appropriate in the circumstances.

The extension might be granted, or it might not, within the court’s discretion. [ 60 ] The Act does not prevent an officer from making repeated requests for detention. However, any request for detention (or continued detention) will need to be justified to the court each and every time. Each successive request will require, one presumes, more and more justification. [ 61 ] In the present case, apart from the original 90 day detention, the detention was effected by way of judicial authorization. These are not decisions of the fisheries officers or the Crown; they are judicial decisions.

They have not been subject to appeal or review, and are presumed valid. [ 62 ] It also seems relevant to point out that, in cases where charges are laid, seized evidence can theoretically be held for many months, or even years, typically without any formal judicial authorization or court order.

I know of no case where such a circumstance was found unconstitutional. [ 63 ] The applicant lastly submits (at ground (d)) that the Act “[does] not provide any opportunity for the owner of the seized property to apply to the Court for the return of the seized property on reasonable grounds.” [ 64 ] The Act does provide such a process at section 71(2) . It is, of course, a process that requires that security be deposited in an amount “acceptable to the Minister”. In this case, the respondent notes such a proposal was made to the applicant, but that she did not accept its terms.

The applicant responded that she does not have the financial means to deposit the amount requested by the Minister. [ 65 ] It is the applicant’s position that it is unreasonable for the legislation to provide that the Minister set the amount for security. In her view, such is unfair. She points out that the Minister is an interested party in the proceedings, who might, for example, try and leverage the situation to obtain an advantage.

The applicant suggests that section 71(2) should contain no requirements, or in the alternative that the amount not be set by the Minister. [ 66 ] Once again, I have been provided no caselaw or authority for the applicant’s submissions. [ 67 ] Speaking practically, the requirement of the deposit of security in such cases is quite reasonable. In practice, the application in section 71(2) would only be available in situations where property is being held for possible forfeiture (as opposed to property required as exhibits).

Section 71(2) strikes a balance between keeping the property available for possible forfeiture, versus the applicant’s wish to have the property returned. Removal of any requirement for security, in my view, would risk frustrating the sections of the Act that relate to forfeiture. [ 68 ] Furthermore, it does not seem unreasonable to me that where an applicant seeks the return of an item before a forfeiture hearing can be held, that the Minister should be assessing the appropriate amount that should be deposited.

In those circumstances, it is the Minister who is taking on the risk of the loss of the item. [ 69 ] Having said that, that assessment should be subject to judicial oversight and review in cases of dispute, and it is. In situations where an individual wishes to avail themselves of section 71(2), but disputes the amount requested by the Minister, the matter can be brought to Federal Court. [ 70 ] The applicant acknowledges that this option is/was available to her, but she has chosen not to proceed with it.

It is the applicant’s belief that an application to the Federal Court would be a lengthy process which would not allow for timely and meaningful review. It is unclear to me why the applicant believes this, and there is nothing before me that corroborates this concern. [ 71 ] If the Minister’s assessment of the amount of security was not reviewable, that would certainly seem unfair.

But those decisions are reviewable, and that option of review would clearly guard against any inappropriate or unfair requests on the part of the Minister. [ 72 ] For example, some individuals might assert that they have no ability to deposit the amount of security sought (as indicated by the applicant here); other applicants might assert that they have no ability to deposit any amount of security. In my view, these would be issues to be addressed by the Federal Court in each individual case. [ 73 ] In conclusion, I remain unconvinced that any of the impugned sections of the Act breach

section 8 for the reasons raised by the applicant. I dismiss the application. [ 74 ] If the parties cannot agree as to costs, I would ask for written submissions within 60 days of this decision.

Boudreau, J.