R. v. Wilcox (J.A.),

• Jurisdiction: Nova Scotia
• Judge: Flinn, Cromwell and Oland, JJ.A.
• Neutral Citation: 2001 NSCA 45
• Citation: (2001), 192 N.S.R.(2d) 159 (CA),2001 NSCA 45,152 CCC (3d) 157,[2001] NSJ No 85 (QL),192 NSR (2d) 159,49 WCB (2d) 198,192 NSR(2d) 159,(2001), 192 NSR(2d) 159 (CA),[2001] NS.J. No 85 (QL),192 N.S.R.(2d) 159
• Date: 28 February 2001
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Wilcox (J.A.) (2001), 192 N.S.R.(2d) 159 (CA);

 599 A.P.R. 159

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. MR.010

Her Majesty the Queen (appellant) v. John Allison Wilcox, Glace Bay Fisheries Limited, J.A. Fisheries Limited, Stanley Troke, David Young, Roger Lynn Stoddard, Brian George Lemoine, Murdock MacMullin, Bryan Campbell, James Charles Munden and Robert Leslie Truckair (respondents)

(CAC 160858; 2001 NSCA 45)

Indexed As: R. v. Wilcox (J.A.) et al.

Nova Scotia Court of Appeal

Flinn, Cromwell and Oland, JJ.A.

February 28, 2001.

Summary:

The accused were charged with a multitude of charges under the Fisheries Act. The trial judge ruled that an important document to the Crown's case was not admissible. The Crown elected to call no further evidence and the charges were dismissed. The Crown sought leave to appeal, arguing that the trial judge erred in excluding the document.

The Nova Scotia Court of Appeal granted leave to appeal, allowed the appeal and remitted the matter to the trial judge for continuation of the trial.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused were charged with Fisheries Act offences - Fisheries officers had carried out an inspection of an accused's business premises pursuant to s. 49 of the Fisheries Act and, obtained, inter alia, a ledger book maintained by an ac­cused's employee - The accused argued that the officers' resort to s. 49 offended their s. 8 Charter right as the inspection was conducted to serve an investigatory criminal law purpose not a regulatory purpose - The Nova Scotia Court of Appeal held that the accused only had the most modest reasonable expectation of privacy respecting business documents at business premises - The inspection oc­curred in the course of participation in a highly regulated industry - The inspection did not engage the Hunter requirement of prior judicial authorization where the officers were investigating a suspected offence but did not have reasonable and probable grounds to obtain a search war­rant - See paragraphs 120 to 122.

Civil Rights - Topic 1646

Property - Search and seizure - Unrea­sonable search and seizure defined - [See Civil Rights - Topic 1508 ].

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) - The accused were charged with Fisheries Act offences - Fisheries officers had carried out an in­spection of an accused's business premises pursuant to s. 49 of the Fisheries Act and, obtained, inter alia, a ledger book main­tained by an accused's employee - The accused argued that the officers' resort to s. 49 offended their s. 7 Charter right (principle against self-incrimination) - They argued that the inspection was con­ducted to serve an investigatory criminal law purpose, not a regulatory purpose - The Nova Scotia Court of Appeal held that the inspection and subsequent seizure of the book by search warrant did not infringe the accused's rights under s. 7 - See para­graphs 91 to 119.

Civil Rights - Topic 4458

Protection against self-incrimination - Proceedings to which protection does not apply - Regulatory offences - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - The accused were charged with several charges under the Fisheries Act - The trial judge ruled that an important document to the Crown's case was not admissible - The Crown elected to call no further evidence and the charges were dismissed - The Crown sought leave to appeal, arguing that the trial erred in excluding the document - The accused argued that the appeal should not be entertained because the Crown's method of proceeding constituted an abuse of process - The Nova Scotia Court of Appeal held that the high threshold for dismissing an appeal as an abuse had not been reached in this case - See paragraphs 8 to 16.

Criminal Law - Topic 4958

Appeals - Indictable offences - New trials -Grounds for refusing - Abuse of process - [See Criminal Law - Topic 253 ].

Criminal Law - Topic 7472

Summary conviction proceedings - Appeals - General - Appeal from acquittal (incl. cross-appeal or notice of contention) - Numerous charges against the accused under the Fisheries Act were dismissed - The Crown sought leave to appeal under s. 830 of the Criminal Code - The acquitted accused filed a notice of cross-appeal challenging various rulings of the trial judge - The Nova Scotia Court of Appeal held that a cross-appeal did not lie in these circumstances and the notice of cross-ap­peal should be struck out - Absent a statu­tory right of appeal, there was no right to appeal - There was no right of appeal under s. 830 or elsewhere by an acquitted person from an acquittal - Therefore, there could be no cross-appeal - See paragraphs 17 to 18.

Criminal Law - Topic 7472

Summary conviction proceedings - Appeals - General - Appeal from acquittal (incl. cross-appeal or notice of contention) - Numerous charges against the accused under the Fisheries Act were dismissed - The Crown sought leave to appeal under s. 830 of the Criminal Code - The acquitted accused filed notices of contention chal­lenging several other rulings of the trial judge - The Nova Scotia Court of Appeal reviewed the scope of review under s. 830, Civil Procedure Rule 62.09 and the case­law, and set out the permissible ambit of an acquitted respondent's notice of conten­tion - The court then determined which of the notices of contention met these require­ments in this case and could be determined by the court - See paragraphs 19 to 36.

Criminal Law - Topic 7618

Summary conviction proceedings - Appeal to a court of appeal - Remittal to trial judge - Numerous charges against the accused under the Fisheries Act were dismissed - The Crown sought leave to appeal under s. 830 of the Criminal Code and requested that the matter be remitted to the Provincial Court for continuation of the trial - The accused argued that the court lacked authority to remit the matter for continuation - The Nova Scotia Court of Appeal allowed the appeal and held that it had jurisdiction under s. 834(1) of the Criminal Code to remit the matter to the Provincial Court for continuation of the trial - Further, it was an appropriate exer­cise of the court's jurisdiction to do so in this case - There was no unfairness and considerations of efficiency strongly favour this approach - See paragraphs 125 to 133.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - On appeal, the Crown argued that a document was admissible using the principled approach to the hearsay rule - The Nova Scotia Court of Appeal discussed the rea­sons why, before addressing admissibility under the principled approach, the analysis should first address the question of whether the document was admissible under statutory or traditional hearsay ex­ceptions for several reasons - See para­graphs 44 to 48.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused were charged with Fisheries Act offences respecting snow crab licences, quotas etc. - A seized ledger book (crab book) had been maintained by an accused's employee (settlement clerk) who used the book to record payments made to fisher­men for their product - His employer had not instructed him to maintain the book, no one else knew the book existed and the employee had no independent recollection of the information recorded in the entries -The Nova Scotia Court of Appeal held that the circumstances respecting the book met the threshold test of reliability and neces­sity - See paragraphs 59 to 76.

Evidence - Topic 1581

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Exceptions to admission - The accused were charged with Fisheries Act offences respecting snow crab licences, quotas etc. - A seized ledger book (crab book) had been maintained by an accused's employee (settlement clerk) who used the book to record payments made to fisher­men for their product - His employer had not instructed him to maintain the book, no one else knew the book existed and the employee had no independent recollection of the information recorded in the entries -The Nova Scotia Court of Appeal held that the book was not admissible under the common law business records exception, as the employee had no duty to maintain the book, nor under s. 30(1) of the Canada Evidence Act - The court stated that, although admissibility under s. 30 was seriously debateable, admissibility was best considered under the principled approach to the hearsay rule - See paragraphs 37 to 58.

Fish and Game - Topic 5606

Enforcement - General - Powers of fisheries officers - Fisheries officers carried out an inspection of an accused's premises pursuant to s. 49 of the Fisheries Act and, inter alia, copied numerous documents - The material obtained was used by Rait, who had been engaged by the Department of Fisheries, to undertake a forensic ac­counting analysis - The accused argued that what occurred here was not an inspec­tion within s. 49 because the purpose of the inspection was to obtain documentation to be analyzed by Rait, who was not a "fisheries officer" or "fisheries guardian" within s. 49 - Only fisheries officers could conduct inspections or analyze the results -The Nova Scotia Court of Appeal rejected the argument - Nothing in the Act pre­cluded subsequent use of information obtained by means of inspection for further analysis by or on behalf of the Department for a proper regulatory purpose - See paragraphs 85 to 87.

Fish and Game - Topic 5641

Enforcement - Searches - General - [See Fish and Game - Topic 5606 ].

Fish and Game - Topic 5642

Enforcement - Searches - Inspection v. search - [See Civil Rights - Topic 1508 and Civil Rights - Topic 3160 ].

Practice - Topic 9160

Appeals - Cross-appeals and notices of contention - General - [See both Criminal Law - Topic 7472 ].

Practice - Topic 9170

Appeals - Cross-appeals and notices of contention - Notice of contention - General - [See both Criminal Law - Topic 7472 ].

Practice - Topic 9176

Appeals - Cross-appeals and notices of contention - Grounds for dismissal - [See both Criminal Law - Topic 7472 ].

Cases Noticed:

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1, refd to. [para. 10].

R. v. Barnes, [1991] 1 S.C.R. 449; 121 N.R. 267, refd to. [para. 18].

R. v. Keegstra (J.), [1995] 2 S.C.R. 381; 180 N.R. 120; 169 A.R. 50; 97 W.A.C. 50, refd to. [para. 18].

R. v. Laba, Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241; 94 C.C.C.(3d) 385, refd to. [para. 18].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; 14 C.C.C.(3d) 385; 13 D.L.R.(4th) 1, refd to. [para. 21].

Saunders v. Crouse Estate (1999), 180 N.S.R.(2d) 317; 557 A.P.R. 317 (C.A.), refd to. [para. 25].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 43].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 44].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 190 D.L.R.(4th) 591; 147 C.C.C.(3d) 449, refd to. [para. 45].

R. v. Monkhouse, [1988] 1 W.W.R. 725; 83 A.R. 62 (C.A.), refd to. [para. 49].

R. v. Zundel (1987), 35 D.L.R.(4th) 338 (Ont. C.A.), refd to. [para. 56].

United States v. Hedman (1980), 630 F.2d 1184 (7th Cir.), refd to. [para. 56].

United States v. Freidin (1988), 849 F.2d 716 (7th Cir.), refd to. [para. 56].

United States v. McPartlin (1979), 595 F.2d 1321 (7th Cir.), refd to. [para. 57].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 59].

Clark v. Horizon Holidays Ltd. (1993), 45 C.C.E.L. 244 (Ont. C.J.), refd to. [para. 60].

R. v. Rowley, [1992] O.J. No. 2347 (Gen. Div.), refd to. [para. 60].

Sherritt Gordon Ltd. v. Dresser Canada Inc. et al. (1994), 20 Alta. L.R.(3d) 407 (Q.B.), refd to. [para. 60].

Colley v. Travellers Insurance Co. (1998), 179 N.S.R.(2d) 176; 553 A.P.R. 176 (S.C.), refd to. [para. 60].

606346 Alberta Ltd. v. Abugov, [2000] 5 W.W.R. 623; 262 A.R. 258 (Q.B.), refd to. [para. 60].

LeCoupe v. Canadian Armed Forces et al. (1994), 81 F.T.R. 91 (T.D.), refd to. [para. 60].

Schaeffer v. Saskatchewan Government Insurance et al., [1994] 1 W.W.R. 757; 115 Sask.R. 127 (Q.B.), refd to. [para. 60].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 65].

R. v. W.J.F., [1999] 3 S.C.R. 569; 247 N.R. 62; 180 Sask.R. 161; 205 W.A.C. 161, refd to. [para. 71].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 72].

R. v. Parrott (2001), 265 N.R. 304 (S.C.C.), refd to. [para. 73].

R. v. German (1991), 104 N.S.R.(2d) 298; 283 A.P.R. 298 (Co. Ct.), refd to. [para. 88].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641, refd to. [para. 89].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; 64 D.L.R.(4th) 577; [1990] 1 W.W.R. 577; 71 Alta. L.R.(2d) 273, refd to. [para. 93].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193, refd to. [para. 93].

Comité paritaire de l'industrie de la chemise v. Potash et Selection Milton, [1994] 2 S.C.R. 406; 168 N.R. 241; 61 Q.A.C. 241, refd to. [para. 94].

R. v. McKinlay Transport Ltd. and C.T. Transport Inc., [1990] 1 S.C.R. 627; 106 N.R. 385; 39 O.A.C. 385; 55 C.C.C.(3d) 530; 68 D.L.R.(4th) 568, refd to. [para. 95].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 96].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, refd to. [para. 97].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161; 135 C.C.C.(3d) 257, refd to. [para. 97].

R. v. Bjellebo (E.S.) et al. (1999), 102 O.T.C. 81 (Gen. Div.), refd to. [para. 100].

R. v. Gorenko, [1997] A.Q. No. 3206 (Sup. Ct.), refd to. [para. 100].

R. v. Norway Insulation Inc. (1995), 23 O.R.(3d) 432 (Gen. Div.), refd to. [para. 101].

R. v. Warawa (A.J.) (1997), 208 A.R. 81; 56 Alta. L.R.(3d) 67 (Q.B.), refd to. [para. 101].

R. v. Saplys (L.) et al. (1999), 90 O.T.C. 100; 132 C.C.C.(3d) 515 (Gen. Div.), refd to. [para. 101].

Del Zotto v. Minister of National Revenue, [1999] 1 S.C.R. 3; 252 N.R. 201, refd to. [para. 102].

R. v. Pheasant, [2000] O.J. No. 4237 (Sup. Ct.), refd to. [para. 103].

R. v. Jarvis (W.J.) (2000), 271 A.R. 263; 234 W.A.C. 263 (C.A.), refd to. [para. 104].

Baron et al. v. Minister of National Reve­nue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510, refd to. [para. 106].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [para. 107].

Thomson Newspapers Ltd. v. Director of Investigation Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417, refd to. [para. 108].

R. v. Ling (C.K.) (2000), 144 B.C.A.C. 92; 236 W.A.C. 92; 149 C.C.C.(3d) 127 (C.A.), refd to. [para. 115].

R. v. Wilder (D.M.) (2000), 132 B.C.A.C. 122; 215 W.A.C. 122; 142 C.C.C.(3d) 418 (C.A.), refd to. [para. 115].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, refd to. [para. 120].

R. v. Herring (1990), 93 N.S.R.(2d) 394; 242 A.P.R. 394 (C.A.), refd to. [para. 127].

R. v. Pearce (B.J.) (1997), 157 Nfld. & P.E.I.R. 227; 486 A.P.R. 227 (Nfld. C.A.), refd to. [para. 127].

R. v. Nickerson (C.A.) (1991), 106 N.S.R.(2d) 300; 288 A.P.R. 300 (C.A.), refd to. [para. 128].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8 [para. 92].

Civil Procedure Rules (N.S.), rule 62.09(1) [para. 19];

Criminal Code, R.S.C. 1985, c. C-46, sect. 830(1) [para. 22]; sect. 834(1) [para. 126].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 49, sect. 49.1 [para. 79].

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Authors and Works Noticed:

Canada, Law Reform Commission, Crimi­nal Responsibility for Group Action, Working Paper No. 16 (1976), pp. 11, 12 [para. 108].

Canada, Law Reform Commission, Our Criminal Law (1976), pp. 3, 5, 7 [para. 108].

Ewart, J. Douglas, Documentary Evidence in Canada (1984), pp. 57 [para. 50]; 97 to 100 [para. 56].

Ewaschuk, E., Criminal Pleadings and Practice in Canada (2nd Ed.), § 24.2150 [para. 127].

Salhany, R.E., Canadian Criminal Pro­cedure (6th Ed.), § 9.2230 [para. 127].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 211, 212 [para. 51]; para. 18.3 [para. 62]

Counsel:

Gordon S. Campbell and Lori-ann Veinotte, for the appellant;

Ralph W. Ripley, for the respondents, Stoddard, Lemoine, Munden, MacMullin, Campbell and Truckair;

Darlene MacRury, for the respondents, Wilcox, Glace Bay Fisheries Ltd., J.A. Fisheries Ltd., Troke and Young.

This matter was heard on October 17, 18 and 19, 2000, before Flinn, Cromwell and Oland, JJ.A., of the Nova Scotia Court of Appeal. The following decision was de­livered by Cromwell, J.A., for the Court of Appeal on February 28, 2001.