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RIGHTS OF ENTRY UNDER FISHERIES AND WASTE MANAGEMENT ACTS

by Mary MacGregor

(written 1994, published in Beef in B.C. May/June 94)

This article can be read with a series of three articles that I wrote for Beef In B.C. in 1992. Those articles dealt with the federal Fisheries Act and the provincial Water Act (B.C.) and Waste Management Act (B.C.). The first two articles had general information about how the three statutes work, and court cases on them. The third article talked about how to deal with a situation where you are under investigation for a possible offence.

This article is about the rights of entry authorized under the Fisheries Act and the Waste Management Act.

Fisheries Act

The Fisheries Act, section 38(3), says:

An inspector may, at any reasonable time, enter any place, premises, vehicle or vessel, other than a private dwelling place or any part of any place, premises, vehicle or vessel used as a permanent or temporary private dwelling-place, where the inspector believes on reasonable grounds that any work or undertaking resulting or likely to result in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions referred to in sub-section 37(1) is being, has been or is likely to be carried on, and the inspector may, for any purpose related to the enforcement of this section, conduct inspections, including examining any substance or product found therein, taking samples thereof and conducting tests and measurements.

(Section 37(1) refers to a work or undertaking that results or is likely to result in the alteration, disruption or destruction of fish habitat, or in the deposit of a deleterious substance in water frequented by fish…).

Section 52 says:

In the discharge of his duties, any fishery officer, fishery guardian or other person accompanying him or authorized to such effect by the fishery officer may enter on and pass through or over private property without being liable for trespass.

The Waste Management Act, section 21, says:

An officer may at any reasonable time enter on works or land and investigate any process, works or activities that
1. produces or is capable of producing waste.
2. causes or is capable of causing pollution, or
3. is used for the storage, handling, treatment, destruction or disposal of waste, but nothing in this subsection authorizes entry into any structure used solely as a private residence, or into any residential accommodation in any other structure.
The powers of an officer on entry under subsection (1) include the power to
1. examine and take away records relating to
  1. the causing of pollution,
  2. the production, treatment, storage, handling, transportation and discharge of waste, and
  3. the characteristics of the waste produced, treated, stored, handled, transported or discharged, and
2. carry out inspections, measurements and tests on the land or of any articles, substance or waste on it to ascertain the extent to the pollution or measure the quantity of waste produced, treated, stored, handled, transported or discharged and take away samples of the land, articles, substance or waste as he considers appropriate for the purpose, and section 19 of the Offence Act (B.C.) applies.
to 5. [Repealed 1989-62-6.]

An officer so authorized may take with him on to the land such other persons and equipment as may be necessary.

6.1 If an officer enters on works or land under subsection (1) the officer, on request, shall provide proof of identity to a person present at the works or land.
[Repealed 1989-62-6.]

There is a further provision for inspection of vehicles in section 21.1. The provision seems aimed at the transportation of dangerous substances.

Comments About the Plain Wording of these Sections

On their plain wording, these sections seem clear enough, though broad in scope. Many of the terms used in the legislation like “works” or “land”, or “inspector” or “officer” are defined in the definition section of the legislation. To understand the legislation, one must look at the whole statute including the definition section.

Charter of Rights and Freedoms

The situation becomes more complicated in that these sections have to be tested against the Charter of Rights and Freedoms. If they offend the Charter, then they will be invalid and unenforceable, and evidence obtained in contravention of Charter-required procedures will not be admissible.

The Charter of Rights and Freedoms, section 1, 7, and 8 says:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right to be secure against unreasonable search or seizure.

We looked for, but did not find, cases where the above sections of the Fisheries Act and the Waste Management Act had been tested under the Charter. We could not find any reported cases.

Without a court decision on point, there is no final answer whether these provisions are constitutional, or not. The only way to get a final answer is to defend a charge where a search took place without a warrant under section 38(3), 52, or 21, and raise the Charter argument as a defence.

I talked with a lawyer in the Kamloops Crown Counsel office, who suggested that if an investigating officer were going onto property to see if an offence was being committed, the Crown would not likely get a search warrant. If the officer were going onto property to get evidence for an anticipated prosecution, the Crown would get a search warrant prior to entry.

In February 1994, I discussed some of the material in this article with a group of people in the North Okanagan. One of the other people at the seminar was Joel Allen, a hog farmer who had been prosecuted under the Water Act and the Fisheries Act. Judge Brecknell of Salmon Arm, who acquitted Mr. Allen, made reference in his judgment to the issue of the constitutionality of the warrantless search. He said in his unreported reasons for judgment: “I’m not satisfied that the search warrant or lack of a search warrant issue is really an issue in this particular case, but I comment for what it’s worth, that Section 52 simply seems to allow the Fisheries officers the right to trespass without recourse, and it would not appear to allow them to violate Section 8 of the Charter, which still protects individuals from unreasonable search and seizure.”.

A further constitutional issue is that each of these two statutes requires you to report yourself if you offend against the Act. One of the aspects of section 7 of the Charter is the right to protect yourself from self-incrimination. You do not have to convict yourself, you have the right to be silent when accused. What would a judge think when considering the constitutionality of the self-reporting requirements? Until a decision is made one cannot say for sure. One possibility is that a judge would find under section 1 of the Charter that, in the circumstances he or she is considering, the self-reporting requirement is acceptable. The judge would be balancing the right of the individual to protect him or herself against self-incrimination against society’s right to a clean environment and the likelihood that the environmental damage would be discovered if self-reporting is not required.

A practical concern in sorting out these constitutional issues, is cost. Often a guilty plea will result in a modest fine, which is much less than the legal costs of defending the case. The costs of mounting a constitutional challenge are much, much higher than a simple defence on other grounds, and rise sharply if an appeal to a higher court is required (as it often is in constitutional issues).