Court says feds breached charter in P.E.I. fish kill investigation

·3 min read
Under the Fisheries Act, routine inspections do not require a search warrant, but the legal document is required for more serious matters, including fish kill investigations.  (CBC - image credit)
Under the Fisheries Act, routine inspections do not require a search warrant, but the legal document is required for more serious matters, including fish kill investigations. (CBC - image credit)

The Island's top court has upheld the acquittal of an Island farming operation in connection with a fish kill five years ago that has sparked a long legal battle.

In a written decision issued Friday, P.E.I .Supreme Court upheld a provincial court finding that the actions of federal investigators constituted a "serious breach" of the Canadian Charter of Rights and Freedoms when it came to the farmers who were under investigation.

"This is a good day for my family but a great day for all farmers in Canada," said Alex Docherty, who owns and operates Skye View Farms with his son Logan, the three parties named in the court case.

The July 2016 fish kill on the Clyde River followed a heavy rainfall. Docherty was fined by the province in 2017 for having allowed his pesticide sprayer's licence to expire. Federal charges were laid in 2018.

Docherty pleaded not guilty and went to trial. The judge in that case ruled investigators failed to get the necessary search warrants, and found the farmers not guilty.

Friday's Supreme Court decision upheld that decision and expanded on the explanation for it.

Krystalle Ramlakhan/CBC
Krystalle Ramlakhan/CBC

The court ruled that federal fisheries staff failed to understand they were required to obtain a search warrant, given the serious nature of investigations linked to fish kills.

"This was a serious breach of the charter," wrote Justice James Gormley in his 18-page decision. "A warrant was required prior to the fisheries officers entering upon the land of the accused."

In less serious circumstances, such as routine inspections, search warrants are not required. The judge found fisheries staff failed to differentiate between a routine inspection and a more serious investigation, as defined in the federal Fisheries Act.

Provincial enforcement officers did not make the same mistake, said Gormley. The judge at the original 2019 trial in provincial court found that significant, and so did the Supreme Court judge in Friday's decision.

Expectation of privacy

"The provincial enforcement officers may have had a different view of the expectation of privacy to be afforded to a land owner in this situation," Gormley wrote.

Gormley did note, however, that a search of land does not have the same impact on an accused person as a search of his or her home.

The judge also supported the lower court's ruling that in fish kill investigations, farmers are entitled to an "enhanced reasonable expectation of privacy." This is because fish kill investigations are conducted under powers of the federal Fisheries Act.

Farmers are not regular participants in fisheries activities and have less familiarity with its requirements.

"I support her analysis on this factor," Gormley wrote, in reference to the 2019 decision by provincial court judge Nancy Orr.

The officers chose to ignore the requirement. That was their choice. - Brandon Forbes, lawyer

The lawyer for Skye View Farms told CBC News the Supreme Court ruling underscored the requirement of federal investigators to "follow their own legislation."

"The officers chose to ignore the requirement. That was their choice," said lawyer Brandon Forbes in an email to CBC News.

The ruling also confirms that privacy rights of farmers extend to farm land and fields, according to Forbes.

"I suspect farmers will be happy that someone challenged the federal government on this point and that the Courts agreed," said Forbes.

Fisheries and Oceans Canada declined comment Monday. Federal prosecutors have 30 days to file an appeal.

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