R. v. Sandover-Sly (R.A.), 2002 BCCA 56

• Judge: Finch, C.J.B.C., Donald and Braidwood, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 14, 2002
• Jurisdiction: British Columbia
• Citations: 2002 BCCA 56;(2002), 163 B.C.A.C. 312 (CA)

R. v. Sandover-Sly (R.A.) (2002), 163 B.C.A.C. 312 (CA);

    267 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. JA.060

Regina (respondent) v. Richard Anthony Sandover-Sly (appellant)

(CA025582; 2002 BCCA 56)

Indexed As: R. v. Sandover-Sly (R.A.)

British Columbia Court of Appeal

Finch, C.J.B.C., Donald and Braidwood, JJ.A.

January 31, 2002.

Summary:

Greene, a fisheries officer, received a tip from an informant that there was fish in the back of a truck. Greene told another fisheries officer, Tupniak. Tupniak followed the truck and approached the truck when it stopped at a service station. He observed that Braun was the driver of the truck. Tupniak told Braun that he would like to look in the back of the truck. Braun unwrapped a tarp under which there were two freezers. The officer looked in the freezers and found shucked abalone. A search warrant was then obtained and 750 pounds of abalone was seized from the truck along with various documents from inside the truck. Braun, the accused, the accused's wife and the corporate owner of a tug/house barge were charged with six counts under the Fisheries Act of offences relating to poaching abalone (purchasing, selling or possess­ing fish caught contrary to the Act and with fishing shellfish during a closed time). At the outset of the trial, a voir dire was held to determine the admissibility of the evidence obtained as a result of the search of the truck. There was also a consti­tutional challenge to s. 49(1) of the Fisheries Act which gave fisheries officers powers of entry and inspection for purposes of enforc­ing the Act.

The British Columbia Supreme Court, in a decision reported in 2 B.C.T.C. 81, refused to deal with the constitutionality of s. 49(1) where no notice was served under the Con­stitutional Questions Act. The court held that Tupniak lacked reasonable grounds to con­duct an "inspection" of the truck under s. 49(1) of the Fisheries Act and the officer's conduct amounted to a "search" rather than an "inspection". The court held that the "search" was unreasonable and contrary to s. 8 of the Charter. However, the court held that the abalone that was discovered was non-conscriptive evidence and therefore its admission into evidence would not affect the fairness of the trial. The court thus dismissed the defence application to exclude the evi­dence obtained during the search of the truck.

The tug owner was acquitted. The ac­cused's wife was convicted of possessing abalone, but acquitted on appeal. Braun pleaded guilty to one count of unlawfully fishing for abalone and was fined $7,000 and ordered to pay $5,000 compensation and forfeit his diving gear. Braun was prohibited from diving or participating in any commer­cial fishery for two years. The accused was convicted of unlaw­fully fishing for and being in possession of abalone. He was fined $7,000 plus a victim fine surcharge of $700, a two year pro­hibition from diving while participating in a commercial fishery in Canada, and a forfeiture order for the tug and its related furniture and fixtures. The accused appealed the sentence and the for­feiture order.

The British Columbia Court of Appeal, in a decision reported in 142 B.C.A.C. 198; 233 W.A.C. 198, allowed the appeal in part, by deleting the imposition of the victim fine surcharge. The court dismissed the appeal against the forfeiture order on the ground that, because the accused did not own the forfeited property, the court lacked jurisdic­tion. After entry of this order, counsel became aware of s. 86(1) of the Fisheries Act. The Supreme Court of Canada remanded this case to the Court of Appeal to recon­sider the decision that it did not have juris­diction, in light of s. 86(1).

The British Columbia Court of Appeal held that the court had jurisdiction respecting the forfeiture order. The court affirmed the imposition of the order (except as it related to equipment specifically designed for use in logging operations) and dismissed the appeal.

Fish and Game - Topic 2701

Offences - Sentence - Fines and penalties -Fishing in closed season - The accused was convicted of unlawfully fishing, pos­sessing and selling abalone during a closed time - The sentencing judge, inter alia, ordered forfeiture of a tug, house barge, equipment and fixtures (owned by a cor­poration, of which the accused was the general man­ager) - The accused appealed the forfeit­ure, arguing that it offended the principles of sentencing parity with a co-accused - The British Columbia Court of Appeal noted that the tug, barge and most of the seized equipment were essential to the poaching - The court affirmed the forfeit­ure order, except for equipment specifi­cally used for logging operations - Because the forfeiture differed from the sentence, it was not a factor to consider on the issue of sentence parity - See para­graphs 28 to 32.

Fish and Game - Topic 2708

Offences - Sentence - Fines and penalties -Forfeiture - [See Fish and Game - Topic 2701 ].

Fish and Game - Topic 2908

Offences - Forfeitures - Appeals - The British Columbia Court of Appeal held that a forfeiture order under s. 72(1) of the Fisheries Act was considered a sentence within the meaning of s. 673 of the Crimi­nal Code, and therefore reviewable on an appeal against sentence - See paragraphs 5, 18.

Cases Noticed:

R. v. Spence (1961), 132 C.C.C. 234 (P.E.I.S.C.), refd to. [para. 20].

Haddad v. Newfoundland - see Newfound­land v. Baker, P.C.J., et al.

Newfoundland v. Baker, P.C.J., et al. (1998), 161 Nfld. & P.E.I.R. 192; 497 A.P.R. 192 (Nfld. C.A.), refd to. [para. 20].

R. v. Smith (1978), 15 Nfld. & P.E.I.R. 115; 38 A.P.R. 115 (Nfld. C.A.), consd. [para. 21].

R. v. Plank (G.J.), [1998] N.J. No. 284 (Nfld. C.A.), refd to. [para. 24].

Authors and Works Noticed:

Ruby, Clayton C., Sentencing (3rd Ed. 1987), p. 173 [para. 19].

Ruby, Clayton C., Sentencing (5th Ed. 1999), generally [para. 19].

Thomas, D.A., Principles of Sentencing (2nd Ed. 1979), generally [para. 25].

Counsel:

T.B. Doust, for the appellant;

K.J. Yule, for the respondent.

This appeal was heard before Finch, C.J.B.C., Donald and Braidwood, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on January 14, 2002. The decision of the court was deliv­ered on January 31, 2002, by Finch, C.J.B.C.