R. v. Lowe (A.) et al., (2007) 280 Nfld. & P.E.I.R. 331 (NLPC)

• Judge: Kennedy, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: July 23, 2007
• Jurisdiction: Newfoundland and Labrador
• Citations: (2007), 280 Nfld. & P.E.I.R. 331 (NLPC)

R. v. Lowe (A.) (2007), 280 Nfld. & P.E.I.R. 331 (NLPC);

    859 A.P.R. 331

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. NO.023

Her Majesty the Queen v. Alvin and Yvonne Lowe

(No. 0605A00309)

Indexed As: R. v. Lowe (A.) et al.

Newfoundland and Labrador Provincial Court

District of Clarenville

Kennedy, P.C.J.

July 23, 2007.

Summary:

The accused took part in an organized protest fishery. They were charged with engaging in recreational fishing for groundfish (cod), during a closed time (Atlantic Fisheries Regulations (s. 91(1)). The accused applied to exclude a videotape taken by a Fisheries Guardian on the basis that, at the time it was taken, they were detained and were not informed of their right to counsel and their right to remain silent, contrary to s. 10(b) of the Charter.

The Newfoundland and Labrador Provincial Court allowed the application.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - The accused took part in an organized protest fishery - Fisheries personnel were instructed by supervisors to patrol, observe, videotape and report back what they observed that day - No vessels or evidence were to be seized, no warnings were to be given and no charges laid that day - Fisheries personnel came alongside a vessel in which people were observed fishing using hand lines - An officer "held" the accused's vessel so that the two vessels would not drift apart or collide - A Fisheries Guardian began videotaping the event - Within seconds a Fisheries Officer (Officer Sullivan) observed three cod in the accused's vessel - He advised people on the vessel, inter alia, that they were only collecting data, they would not be coming on board, and there would be no warnings or charges laid that day - One accused, a retired RCMP officer requested that his, inter alia, rights to silence be read to him - Officer Sullivan declined, stating that there was no need for any warning or rights - The accused (husband and wife) were later charged with engaging in recreational fishing for groundfish, during a closed time (Atlantic Fisheries Regulations (s. 91(1)) - The Newfoundland and Labrador Provincial Court allowed the accused's application to exclude the part of the videotape showing the fish on the basis that, at the time it was taken, they were detained and were not informed of their right to counsel and their right to remain silent, contrary to ss. 10(b) and 7 of the Charter - The officers' inspection ended and an investigation began as soon as the cod were observed (not later when the charges were laid) - The videotape was not crucial and was non-conscriptive - However, the Charter breach was deliberate and serious - The vessel was held in order for the videotaping of the fish to be continued - The accused requested that he be given his rights, but was refused - Fisheries personnel deliberately pursued a course of conduct which they ought to have known was improper and not in conformity with the Charter - By instructing the Fisheries personnel to observe, videotape and report back, the supervisors were, in effect, sending the personnel out to collect evidence of breaches or conduct a fishing expedition for potential charges - Admission of the evidence would bring the administration of justice into disrepute - See paragraphs 65 to 100.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused took part in an organized protest fishery - Fisheries personnel were instructed by supervisors to patrol, observe, videotape and report back what they observed that day - No vessels or evidence were to be seized, no warnings were to be given and no charges laid that day - Fisheries personnel came alongside a vessel in which people were observed fishing using hand lines - An officer "held" the accused's vessel so that the two vessels would not drift apart or collide - A Fisheries Guardian began videotaping the event - Within seconds a Fisheries Officer (Officer Sullivan) observed three cod in the accused's vessel - He advised people on the vessel, inter alia, that they were only collecting data, they would not be coming on board, and there would be no warnings or charges laid that day - One accused, a retired RCMP officer requested that his, inter alia, rights to silence be read to him - Officer Sullivan declined, stating that there was no need for any warning or rights - The accused (husband and wife) were later charged with engaging in recreational fishing for groundfish, during a closed time (Atlantic Fisheries Regulations (s. 91(1)) - The Newfoundland and Labrador Provincial Court allowed the accused's application to exclude part of the videotape on the basis that, at the time it was taken, they were detained and were not informed of their right to counsel and their right to remain silent, contrary to ss. 10(b) and 7 of the Charter - The officers' inspection ended and an investigation began as soon as the cod were observed (not later when the charges were laid) - The accused subjectively believed that they could not leave - They were entitled to their Charter rights as soon as Officer Sullivan observed an offence being committed - Videotaping should have continued only after those rights were read - See paragraphs 1 to 65.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Fish and Game - Topic 5606

Enforcement - General - Powers of conservation or fisheries officers - [See Civil Rights - Topic 4602 and Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1, refd to. [para. 23].

R. v. Mercer (D.A.) et al. (2005), 245 Nfld. & P.E.I.R. 50; 730 A.P.R. 50 (N.L.C.A.), refd to. [para. 23].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 24].

R. v. Ling (C.K.), [2002] 3 S.C.R. 814; 295 N.R. 273; 173 B.C.A.C. 161; 283 W.A.C. 161, refd to. [para. 26].

R. v. Chapelstone Developments Inc. et al. (2004), 277 N.B.R.(2d) 350; 727 A.P.R. 350; 2004 NBCA 96, refd to. [para. 29].

R. v. Cranford (E.) (1999), 180 Nfld. & P.E.I.R. 248; 548 A.P.R. 248 (Nfld. Prov. Ct.), refd to. [para. 32].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 32].

R. v. Hillier (G.) et al. (1996), 141 Nfld. & P.E.I.R. 6; 443 A.P.R. 6 (Nfld. Prov. Ct.), refd to. [para. 32].

R. v. Kent (1991), 109 N.S.R.(2d) 335; 297 A.P.R. 335 (C.A.), refd to. [para. 33].

R. v. Alexander (W.J.) (2003), 184 B.C.A.C. 280; 302 W.A.C. 280 (C.A.), refd to. [para. 33].

R. v. Toque, [2006] N.U.J. No. 7 (C.A.), refd to. [para. 33].

R. v. Inco Ltd. (2001), 146 O.A.C. 66; 54 O.R.(3d) 495 (C.A.), refd to. [para. 33].

R. v. Sandover-sly, [1999] B.C.J. No. 142 (Prov. Ct.), refd to. [para. 34].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129, refd to. [para. 39].

Comité paritaire de l'industrie de la chemise v. Potash et Sélection Milton, [1994] 2 S.C.R. 406; 168 N.R. 241; 61 Q.A.C. 241; 91 C.C.C.(3d) 315, refd to. [para. 48].

R. v. Douglas, [2002] B.C.J. No. 3134 (Prov. Ct.), refd to. [para. 52].

Caledon (Town) v. Mik (1995), 31 M.P.L.R.(2d) 112 (Ont. Prov. Ct.), refd to. [para. 54].

Belgoma Transportation Ltd. v. Director of Employment Standards (Ont.), (1985), 10 O.A.C. 11; 51 O.R.(2d) 509 (C.A.), refd to. [para. 54].

R. v. Dominaux (1989), 78 Nfld. & P.E.I.R. 201; 244 A.P.R. 201 (Nfld. Prov. Ct.), refd to. [para. 55].

R. v. Keats (1987), 67 Nfld. & P.E.I.R. 116; 206 A.P.R. 116 (Nfld. C.A.), refd to. [para. 56].

R. v. Payne (A.) (1987), 67 Nfld. & P.E.I.R. 284; 206 A.P.R. 284 (Nfld. T.D.), refd to. [para. 57].

R. v. Vautour (1987), 62 Nfld. & P.E.I.R. 143; 190 A.P.R. 143 (Nfld. C.A.), refd to. [para. 57].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 59].

Dehghani v. Minister of Employment and Immigration, [1993] 1 S.C.R. 1053; 150 N.R. 241, refd to. [para. 59].

R. v. Kooktook (S.) et al. (2006), 391 A.R. 1; 377 W.A.C. 1 (Nu. C.A.), refd to. [para. 60].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1, refd to. [para. 62].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270, refd to. [para. 67].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 67].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 67].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 67].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48 (Q.B.), refd to. [para. 67].

R. v. Rhyno (V.W.) (2002), 204 N.S.R.(2d) 156; 639 A.P.R. 156 (Prov. Ct.), refd to. [para. 70].

R. v. Kennedy (D.D.) (1995), 135 Nfld. & P.E.I.R. 271; 420 A.P.R. 271 (Nfld. C.A.), refd to. [para. 74].

R. v. Norway Insulation Inc., [1995] O.J. No. 1073 (Gen. Div.), refd to. [para. 77].

R. v. Siemens (R.W.), [1994] 6 W.W.R. 609; 92 Man.R.(2d) 206; 61 W.A.C. 206, refd to. [para. 78].

R. v. Penny (1992), 102 Nfld. & P.E.I.R. 108; 323 W.A.C. 108; 39 M.V.R.(2d) 320 (P.E.I.T.D.), refd to. [para. 81].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 86].

R. v. Squires (E.) (2005), 249 Nfld. & P.E.I.R. 14; 743 A.P.R. 14 (N.L.C.A.), refd to. [para. 87].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479, refd to. [para 88].

R. v. T.A.V. (2001), 299 A.R. 96; 266 W.A.C. 96; 2001 ABCA 316, refd to. [para. 89].

R. v. Logan, Logan and Johnson (1988), 30 O.A.C. 321; 68 C.R.(3d) 1 (C.A.), refd to. [para. 91].

Counsel:

James Hughes, for the Crown;

James Bennett, for the defence.

This application was heard before Kennedy, P.C.J., of the Newfoundland and Labrador Provincial Court, District of Clarenville, who delivered the following judgment orally on July 23, 2007.