R. v. Sandover-Sly (R.A.), (2000) 142 B.C.A.C. 198 (CA)

• Judge: McEachern, C.J.B.C., Finch and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 20, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 142 B.C.A.C. 198 (CA);2000 BCCA 445

R. v. Sandover-Sly (R.A.) (2000), 142 B.C.A.C. 198 (CA);

    233 W.A.C. 198

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. OC.048

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

(CA025582; 2000 BCCA 445)

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

British Columbia Court of Appeal

McEachern, C.J.B.C., Finch and Saunders, JJ.A.

July 20, 2000.

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 and others were charged with purchasing, selling or possess­ing fish caught contrary to the Fisheries 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 accused was convicted of unlaw­fully fishing for and being in possession of abalone. He was fined $7,000 plus given a victim fine surcharge of $700 and a two year pro­hibition from diving while participating in a commercial fishery in Canada. The accused appealed the sentence.

The British Columbia Court of Appeal allowed the appeal in part, by deleting the imposition of the victim fine surcharge.

Fish and Game - Topic 2701

Offences - Sentence, fines and penalties - Fishing in closed season - The accused was convicted of unlawfully fishing for and possession of approximately 4,400 abalone weighing about 750 lbs. and worth over $18,000 - The British Columbia Court of Appeal affirmed a fine of $7,000 - A vic­tim fine surcharge of $700 was conceded by the Crown to be illegal - A two year diving prohibition while partici­pating in a commer­cial fishery was upheld - The court held that the accused had no standing to challenge the forfeiture of the tug and barge of the co-accused.

Fish and Game - Topic 2716

Offences - Sentence, fines and penalties - Possession of fish - [See Fish and Game - Topic 2701 ].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 72(1), sect. 75(1) [para. 5].

Counsel:

T.S. Doust, for the appellant;

K.J. Yule, for the Crown, respondent.

This appeal was heard before McEachern, C.J.B.C., Finch and Saunders, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on July 20, 2000, when the following decision was delivered orally for the court by Finch, JJ.A.