R. v. Rice

2009 BCCA 569 R. v. Rice Bcca0569COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Rice, 2009 BCCA 569 Date: 20091214 Docket: CA035730 Between: Regina Appellant And Ernest Abraham Rice Respondent Before: The Honourable Madam Justice Levine The Honourable Mr. Justice Tysoe The Honourable Madam Justice Garson On appeal from: Supreme Court of British Columbia, December 18, 2007, dismissing the appeal from conviction of the Provincial Court of British Columbia, June 5, 2006 (HMTQ. v. Rice, 2007 BCSC 1828; R. v. Charlie, Rice, Kamloops Docket 77135) Counsel for the Appellant: J. Oliphant Counsel for the Respondent: R. Racette Place and Date of Hearing: Vancouver, British Columbia September 10, 2009 Place and Date of Judgment: Vancouver, British Columbia December 14, 2009 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Madam Justice Levine The Honourable Mr. Justice Tysoe Reasons for Judgment of the Honourable Madam Justice Garson: Introduction [1] A conservation officer stopped the accused and two others to determine whether they had been hunting, and to obtain information about wildlife possessed by them, as he was authorized to do pursuant to s. 95 of the Wildlife Act, R.S.B.C. 1996, c.

488. He ascertained that they had been hunting, that they had shot a moose, and that two of them were aboriginal hunters but not from that local area (this question was relevant to certain regulatory exemptions available to aboriginal hunters, hunting in their traditional territory). The officer then asked the question at the heart of this appeal, "Who shot it?" The accused, Mr. Rice, replied, "I did". This appeal concerns the admissibility of this incriminatory statement. [2] At a trial before a provincial court judge, the accused was acquitted of killing a moose in closed hunting season and illegal possession of dead wildlife contrary to ss. 26(1)(c) and 33(2) of the Wildlife Act, after the judge ruled that Mr. Rice's incriminatory statement, that he shot the moose, was not admissible (reasons for judgment, June 5, 2006, Kamloops Registry No. 77135). On appeal to the Supreme Court of British Columbia, the summary conviction appeal court judge dismissed the appeal with reasons indexed at 2007 BCSC 1828. The judge on appeal agreed with the provincial court judge that the statement was not admissible. Leave having been granted to this Court, the Crown appeals on the grounds that the summary conviction appeal court judge erred in holding that in the context of a statement obtained under statutory compulsion, the accused was entitled to the protection of the Charter and should

have been warned under s. 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter], before the conservation officer asked, "Who shot it?" [3] No challenge to the constitutionality of s. 95 is advanced. Factual Background [4] The background facts are not controversial and are set out by the provincial court judge as follows: [7] On September 12, 2004, Conservation Officer DahI received a complaint of a moose being killed during closed season. That evening, acting on the complaint, he went to the Monte Hills area, but it was too dark to conduct a meaningful investigation. [8] The next morning, September 13, 2004, he went back to the area and found the head and gut pile of a dead moose. Later that day he received another tip and went back to the area, parked and waited. He also called Conservation Officer Lockwood to assist in the investigation. The conservation officers had the access points to Monte Hills covered. [9] At 8.15 P.M. a vehicle approached C.O. DahI and he turned on his emergency lights and stopped the vehicle. This was the vehicle which was the subject of the earlier tip. [10] After speaking to the driver and being told that they were hunting deer and seeing a dead four-point buck in the back of the vehicle, he instructed the driver to pull off to the side of

the road. At that point C.O. DahI called C.O. Lockwood and asked for his assistance. [11] C.O. Lockwood testified that when he was called by C.O. Dahl to come to his location, he could hear the anxiety in C.O. Dahl's voice. When he arrived at the location he saw C.O. DahI speaking to a man who he would later learn to be the Defendant, Loren Charlie. He parked his vehicle to the side of the road, but with his emergency lights on. [12] Another truck came towards C.O. Lockwood, it slowed and stopped beside him. He approached the passenger side of the truck and recognized the elderly man sitting in the passenger seat. He knew this man to be an aboriginal elder from the Neskonlith Indian Band. He could not remember the man's name. [13] C.O. Lockwood's purpose in approaching the truck was to ascertain the activities of the individuals and to fulfil his obligations pursuant to s. 95 of the Wildlife Act. [14] He asked if they had been hunting and was told that they had been. This answer came from the driver's side of the vehicle where Ernest Rice was sitting. [15] C.O. Lockwood then asked if they had shot anything and was told that they had. At this point Mr. Rice produced a status card in his name. Someone from the back seat of the truck passed another status card to C.O. Lockwood. At this point, C.O. Lockwood knew that both Mr. Rice and Derek Peter, the backseat passenger, were

status Indians from Vancouver Island. [16] C.O. Lockwood asked. "Did you shoot anything?". Mr. Rice said "Yes, a moose." C.O. Lockwood followed this up by asking, "Who shot it?" and Mr. Rice replied, "I did." [17] C.O. Lockwood walked to the back of the truck and under a tarp was a cow moose. He went back to the passenger side of the vehicle and asked where the moose was shot. A response was given. [18] C.O. Lockwood testified that he assumed that he was likely dealing with an illegal moose because the hunting season was closed. The only reservation he had was because of the elder from the Neskonlith Indian Band. C.O. Lockwood testified that he never concluded that the moose was an illegal kill because he did not know who shot it. [19] The location of the interview was in a somewhat remote location 3.7 kms off of Highway 97. The RCMP detachments in Kamloops, Chase and Falkland would be an approximate thirty-minute drive. [20] In cross-examination, C.O. Lockwood testified that near the end of his questioning of Mr. Rice, he asked Mr. Rice if he wanted to provide a statement and Mr. Rice very clearly indicated that he did not want to. Reasons for Judgment of the Provincial Court Judge [5] In his reasons for judgment, the provincial court judge said this: [28] In this case, what began as Iegitimate questioning pursuant to s. 95 of the Wildlife Act quickly became, because of the

circumstances, an exercise in gathering evidence relating to the commission of an offence. At that point there clearly was an adversarial relationship between Mr. Rice and the state. ... [30] However, very quickly, C.O. Lockwood knew that a moose had been killed during closed season. He also knew that Mr. Rice and the backseat passenger were not from the area. The presence of the elder from the Neskonlith Band did not change the focus of the investigation. [31] In my view, within the context of the entire events of the day and with the information he had gathered up to this point of asking the question, "Who shot it?", C.O. Lockwood had reasonable grounds to believe that an offence contrary to the provisions of the Wildlife Act had been committed. [32] The only purpose in asking the question was for the finishing touches of his investigation. This statutorily compelled statement is inadmissible. Reasons for Judgment of the Summary Conviction Appeal Judge [6] The summary conviction appeal judge concluded that the trial judge was correct in finding that by the time the conservation officer asked, "Who shot the moose?", he had completed the s. 95 inspection; he had reasonable grounds to believe an offence had been committed; and he was embarking on the evidence gathering phase of the investigation. In those circumstances, the summary conviction appeal judge held that the trial

judge did not err in finding that the question was not part of a s. 95 inspection under the Wildlife Act. Both judges concluded that s. 7 of the Charter was breached because Mr. Rice was compelled to incriminate himself, and that s. 10(b) of the Charter was breached because Mr. Rice should have been told he had a right to contact counsel before being asked who shot the moose. The Position of the Crown [7] The Crown disputes the finding of the trial judge that the conservation officer had reasonable and probable grounds to believe an offence had been committed, because he did not yet know who had shot the moose. If it was the local aboriginal man then no offence would have been committed. [8] The Crown argues that there is a tension between the pursuit of the truth at a regulatory trial and the right of a defendant not to be required to incriminate himself. [9] The Crown contends that hunters make a conscious choice to participate in hunting, an activity which is extensively regulated for the purposes of conservation and safety. Like the fisherman in R. v. Fitzpatrick, [1995] 4 S.C.R. 154, (whose statement in his hail out and quota report was statutorily compelled, and was held to be admissible in a prosecution under the Fisheries Act), Mr. Rice's statements were made under statutory compulsion as part of the regulatory scheme necessary for the regulatory integrity of the

Wildlife Act. (I discuss Fitzpatrick below.) In other words, his statement was made voluntary by his participation in an activity that may be subject to inspection and interrogation by a conservation officer. [10] The Crown notes in its factum: In effect, there is a partnership between hunters and Conservation Officers under which hunters understand that they will have to show their licences and any dead wildlife and answer questions about hunting as an integral part of the regulatory scheme to conserve wildlife and preserve the environment. [11] The Crown points out the impracticality of transporting suspects to an RCMP detachment for questioning. He says such a requirement would render enforcement difficult in the wilderness. [12] The Crown relies on R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757 at para. 89, a case concerning an income tax investigation, for the proposition that "the mere existence of reasonable grounds that an offence may have occurred is by itself insufficient to support the conclusion that the predominant purpose of an inquiry is the determination of penal liability". I also discuss the Jarvis case below. [13] The Crown argues that for the same reasons, s.10(b) of the Charter is inapplicable. [14] The Crown concedes that Mr. Rice was detained once his vehicle was pulled over by the conservation officer for the hunter check. [15] Alternatively, the Crown

argues that the answer was admissible as a justifiable limit to the appellant's s. 10(b) rights, pursuant to s. 1 of the Charter. Position of Mr. Rice [16] The respondent's position is that s. 95 permits a conservation officer to gather general information, but once a crime is being investigated s. 95 cannot be used to compel admissions of guilt, because to do so is contrary to s. 7 of the Charter. Nor can it be used to compel hunters to make confessions such as "I killed the moose" without being properly informed of their Charter rights under s. 10(b) of the Charter. [17] In this case, as soon as the conservation officer received an answer to the question, "Who shot it?", his investigation was complete. [18] Mr. Rice argues that he was detained when the conservation officer stopped him and his companions, and that once the conservation officer observed the dead moose in the truck he had reasonable and probable grounds to believe an offence under the Wildlife Act had been committed, and at that point the obligation to warn the potential offenders arose. Analysis [19] The conservation officer's powers to stop a vehicle and question the occupants are authorized pursuant to s. 95(1) of the Act. Section 95 provides as follows: 95(1) An officer may, for the purposes of this Act, stop a motor vehicle, private or chartered aircraft or boat or other vehicle to determine whether or not

the occupants of the vehicle have been hunting, trapping or angling, and to obtain information about wildlife or game fish possessed by them. [20] The accused was charged with two offences, under ss. 26(1)(c) and 33(2) of the Wildlife Act. Those sections provide as follows: 26(1) A person commits an offence if the person hunts, takes, traps, wounds or kills wildlife (c) at a time not within the open season, ... 33(2) A person commits an offence if the person has dead wildlife or a part of any wildlife in his or her possession except as authorized under a licence or permit or as provided by regulation. [21] A person who fails to comply with or refuses to give information respecting hunting or fishing, commits an offence under s. 95(2). It provides as follows: 95(2) A person commits an offence under subsection (1) if the person (a) fails to stop, (b) fails to identify himself or herself when requested to do so by the officer, (c) refuses to give information respecting hunting or fishing, or (d) being the driver or operator of a motor vehicle, in or on which there is wildlife or game fish or an article or device that may be used for hunting, trapping or fishing, fails, refuses or neglects to stop his or her motor vehicle when signalled or requested to stop by an officer who is in his or her uniform of office or displays his or her official badge. [22] The trial judge found in all

the circumstances that C.O. Lockwood had reasonable and probable grounds to believe that an offence contrary to the provisions of the Wildlife Act had been committed at the time he asked who shot the moose. [23] At the trial two witnesses testified. The first witness was C.O. Dahl. He described receiving a tip about illegal hunting and travelling to what he described as the Monte Lake area east of Kamloops. This area is contained within Wildlife Management Unit 3-20, Region 3. He staked out the exit route from that area and was successful in apprehending the individuals who had been hunting illegally. He requested the assistance of C.O. Lockwood. Lockwood testified that while he was standing by, uninvolved in the questioning of the suspects, a fourth vehicle approached. C.O. Lockwood did not have any reason to suspect that the occupants of this fourth vehicle had any involvement in the illegal hunting for which the suspects had been apprehended. He testified as follows: Q And as far as you're concerned, at that point, are you looking for any other vehicle or any other people besides the one vehicle, the two people that Officer Dahl is dealing with? A No, I had no other information there was anybody else involved. The information I'd received from Officer Dahl was the vehicle that was stopped was the vehicle we were looking for. [24] In other words, his testimony confirmed that

the fourth vehicle, the Rice vehicle, was unconnected to what I would call the suspect vehicle. C.O. Lockwood was then asked about his interactions with the occupants of the fourth vehicle. He testified: A Then I ask the usual questions in a regulatory check stop. You know, why did the -- I don't remember if I said, "How are you today?" or -- but I got to the question, "Have you been hunting?" I got a response, "Yes." ... Q Okay. Now, when you say the regular questions you ask, these questions you are asking for what purpose and under what authority? A Under s. 95 of the Wildlife Act, we have the power and the right to stop vehicles that are coming from -- to and from areas that are known to hunt and contain wildlife. The purpose of asking those questions at a regulatory check stop is to ascertain what the individuals have been doing -- Q Okay. So you asked, "Have you been hunting?" And you get a response? A I get a response, "Yes." It didn't come from the individual sitting in the passenger seat that I was standing and talking to. It came from the driver's side. ... Q Okay. So the response is yes they'd been hunting. And what happens next? A I asked if they shot anything. They said, "A moose." The driver said, "A moose." I said, "Who shot it?" He said, "I did." I then walked from the passenger side of the vehicle back to the rear of the pickup -- Q Sorry, who said "I did"? A

The driver did. Mr. Rice. Or who I learned to be Mr. Rice. ... Q Okay. A I then walked back to the back of the vehicle, and under a blue tarp in the rear of the vehicle was a young cow moose. Q Sorry, did you say a young cow moose? A Yes. It wasn't a large animal. Q And did that -- was the head attached or not on the cow moose? A Yes, it was. ... A Going through my mind at the time was that they'd shot a moose. I was -- I was taking the assumption that it was -- I was probably -- it was probably an illegal moose, by virtue of the season not being open. But at that particular time, having recognized Mr. Saul -- or recognizing an Aboriginal male elder sitting in the front seat, I --- I didn't conclude at that time whether it was or it wasn't, because I didn't know who had shot it. And at this time I've looked at Mr. Rice's status card and observed that he was from the Cowichan Lake Band, or Cowichan Band. [Emphasis added.] Q So when you say "at this time," the time I'm asking you about is what's going through your head when the driver says they'd shot a moose? A Who'd shot it. What was going -- who'd shot it. Q Sorry, that's what's going through your -- A That's what's going through my head at the time, is that, "They shot a moose. Okay, who shot it?" Q And at that point, you'd seen Rice's status card, you knew he was from Vancouver Island? A Yes. ... Q And do you always charter

after you conclude in the initial investigation that an offence has occurred? A What -- when I've received information that I'm satisfied that an offence has been committed and that that person committed the offence, I would then ask them if they would like to supply me a statement. And at that point in time I would Charter and issue the 10(a), 10(b) Charter written from a card. When I talked to Mr. Rice, I asked him -- we didn't get into that part of the conversation. I don't know if I should go there, but there was -- after I got the answer, "Yes," I asked him if he wanted to supply a statement. He said, "Not with you people." I didn't carry it any farther. I wasn't getting a statement, so I didn't Charter and warn at that point. [25] On these facts, I would not interfere with the trial judge's finding, a finding of mixed law and fact, that the conservation officer did have reasonable and probable grounds, before he asked the question, "who shot it?", to believe an offence had been committed. There is no palpable or overriding error in this finding that would justify appellate intervention on this basis: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. [26] However, in my view, this appeal does not turn on the question of whether the conservation officer had reasonable and probable grounds to believe an offense had been committed before he asked the question, "Who shot

it?" Rather, this appeal turns on the question of whether in the context of the enforcement of hunter regulations, statutorily compelled self-incriminatory answers given without the benefit of a s. 10(b) Charter warning, even where the officer had reasonable and probable grounds to believe an offence had been committed, are nevertheless admissible evidence. [27] I turn to consider the reasons for judgment in three Supreme Court of Canada decisions: Fitzpatrick, R. v. White, [1999] 2 S.C.R. 417, and Jarvis. These three judgments consider the Charter implications of statutorily compelled information which may incriminate an accused. [28] Fitzpatrick concerned a fisherman charged under the Fisheries Act with three counts of unlawfully catching and retaining fish. At trial, the Crown sought to admit into evidence fishing logs and hail reports made by the appellant pursuant to the Fisheries Act. The appellant fisherman argued that the hail report and fishing logs were inadmissible on the grounds that they were self-incriminating and that their admission would violate the appellant's rights under s. 7 of the Charter. [29] The Supreme Court of Canada held per La Forest J. that the evidence was admissible. [30] At para. 42, La Forest J. held that a fisherman could not complain about the statutory self-reporting requirement because he voluntarily participated in the regulated

activity: [42] Surely it defies common sense to argue that the state, in seeking to regulate the commercial fishery by attaching certain conditions to a fishing licence, is coercing an individual to furnish information against himself. Quite the opposite in fact is true; the individual is furnishing information that is meant to benefit him or her, through proper and fair distribution of scarce fishing resources. Just because this information may later be used in an adversarial proceeding, when the state seeks to enforce the restrictions necessary to accomplish its regulatory objectives, does not mean that the state is guilty of coercing the individual to incriminate himself. The state required certain information to be provided, and the individual voluntarily assumed the obligation to do so in deciding to become a fisher in the first place. It ill lies in the mouth of someone who knowingly assumes an obligation for a beneficial purpose to argue later that this obligation has the effect of denying him his rights. [Emphasis added.] [31] The intersection between the Charter protections guaranteed by s. 7 and s. 10(b), and statutorily compelled statements, was also examined by the Court in White. [32] The respondent, Ms. White, was involved in a fatal traffic accident. She was charged with failing to stop at the scene of an accident pursuant to s. 252(1)(a) of the Criminal Code.

She made three separate statements to a police officer. Pursuant to the relevant provincial legislation she was required to report the accident to a police officer and "furnish the information respecting the accident required by the police officer". [33] In the criminal trial the Crown sought to tender the statements despite the fact that Ms. White had not been warned under s. 10(b), on the grounds that she was compelled by the provincial legislation to report the accident. The issue on appeal was whether the admission into evidence in a criminal trial of statements made by the accused under compulsion of the provincial legislation offends the principle against self-incrimination embodied in s. 7 of the Charter. Justice Iacobucci (for the majority) held that the principle against self-incrimination as embodied in s. 7 protected Ms. White against the subsequent use of the compelled statement in the criminal proceeding arising from the traffic accident. [34] Justice Iacobucci applied Fitzpatrick but came to a different result than the one reached in Fitzpatrick. He applied the four factors used by La Forest J. in Fitzpatrick. Those factors are: (i) existence of coercion; (ii) existence of an adversarial relationship between the state and the accused; (iii) the risk of unreliable confessions in the statutorily compelled statement; and (iv) whether the use of the statement would increase the likelihood of abusive conduct by the state. I will explain how he applied each of the Fitzpatrick factors to the circumstances of the White case.

1. Existence of Coercion [35] Justice Iacobucci noted that in Fitzpatrick, La Forest J. emphasized that the fisherman voluntarily chose to participate in the regulated activity, whereas the activity of driving is often necessary to function meaningfully in society. Consequently, he found in White there was not the same sort of voluntary participation in the regulated activity that was found relevant in Fitzpatrick.

2. Adversarial Relationship [36] Justice Iacobucci noted that in Fitzpatrick the accused and the state were not in an adversarial relationship at the time the self-incriminating statement was made. Whereas in White, he found that the police officer taking the accident report was simultaneously investigating a possible crime and that in a sense, the police officer was exercising a dual function. He noted at para. 58, "[t]he result is seemingly contradictory instructions from police". Here he was referring to the police officer's instructions to Ms. White that she was compelled, under the provincial motor vehicle legislation, to report a motor vehicle accident and his Charter warning to her that she had the right to remain silent. And at para. 60, he noted that unlike the facts in Fitzpatrick "... there is no suggestion in this case that the use of accident reports in criminal proceedings is an essential component of the regulatory partnership created by the Motor Vehicle Act".

3. Unreliable Confessions [37] Justice Iacobucci noted that the compellability of the hail out reports and logs in Fitzpatrick did not lead to the prospect of an unreliable confession whereas in the White case, "... this fear of prejudice and incentive to lie would be dissipated if the driver could be confident that the contents of the accident report could never be used to incriminate him or her in criminal proceedings": at para. 62.

4. Abuse of Power [38] Justice Iacobucci noted at para. 63 that in Fitzpatrick, La Forest J. found that it was not abusive for the state to prosecute overfishing on the basis of true reports that fishers were required to complete as a condition of their voluntary participation in the commercial fishery. Whereas in White he held that (at para. 64), "[o]ne can easily imagine the situation of a driver who, confused by the apparent inconsistency between the duty to report and the right to remain silent, would provide a more extensive statement to police than legally required under the Act". [39] Finally, he noted that the onus of proof was on the accused who raises a Charter challenge to the admissibility of evidence to establish an infringement of his Charter rights. [40] The third case decided by the Supreme Court of Canada on this issue of Charter implications in a regulatory context is Jarvis. [41] Jarvis concerned an investigation by Canada Customs and Revenue Agency ("CCRA") following a tip that Mr. Jarvis had not reported sales of his late wife's art on tax returns in certain tax years. As a result of tips concerning this undisclosed income, CCRA audited Mr. Jarvis's tax returns. Meetings were held with Mr. Jarvis and his accountant and information was sought and obtained. Eventually, Mr. Jarvis's file was assigned to an investigator. The investigator determined that

reasonable and probable grounds existed to obtain a search warrant. A warrant was obtained and more information was revealed to CCRA. As a consequence of the execution of the search warrant, additional information was obtained. Mr. Jarvis was eventually brought to trial on three counts of making false or defective statements on an income tax return and two counts of wilfully evading or attempting to evade payment of taxes. The respondent sought to tender documents seized pursuant to the warrant. Mr. Jarvis objected and two separate voir dires were held to determine the admissibility of the documents. The trial judge held that the audit had effectively become an investigation by the date of the warrant and excluded all information obtained from that day forward. Mr. Jarvis was acquitted at trial. The Supreme Court of Canada upheld the judgments of the Court of Appeal and the summary conviction appeal judge holding that the evidence obtained through the warrant was validly gathered pursuant to the auditor's inspection powers and should not have been excluded. A new trial was ordered. [42] At para. 45 of the majority reasons for judgment, per Justices Iacobucci and Major, the issues on appeal, similar to those in the case at bar, were described as follows: [45] The determination of this appeal will turn on the overarching questions set out in the first paragraph of these reasons.

Is there an audit/investigation distinction under the ITA? Where is the line between the two functions drawn? To what extent do taxpayers under investigation for ITA offences benefit from the principle against self-incrimination under s. 7 of the Charter? Is a s. 8 violation made out where documents are obtained under colour of the ITA's "audit powers" after a prosecutorial investigation has commenced? [43] The justices found that the tax scheme was dependent upon the honest reporting of the tax payer (at para. 51); that self-enforcing regulatory schemes depend upon the ability of the regulator to enforce the regime (at para.55); and that different levels of Charter protection may apply under the same statute, depending on the circumstances (at paras 61 and 63). [44] At para. 67, the court held that the fundamental principle of criminal law enshrined in s. 7, that an individual cannot be compelled to incriminate himself, co-exists with regulatory obligations that may not attract the same Charter protection. The justices noted that some administrative schemes, designed in the public interest, of necessity, may compel self-reporting because in those circumstances fundamental justice requires the production of truthful information. [45] The justices then turned to consider how to determine the boundaries between the audit and investigation functions of CCRA, noting (at para. 84)

that "when the CCRA exercises its investigative function they are in a more traditional adversarial relationship because of the liberty interest that is at stake". After reviewing various approaches taken to distinguish these functions, they concluded that the appropriate test is whether the predominant purpose of a particular inquiry is the determination of penal liability. They said (at para. 88): [88] In our view, where the predominant purpose of a particular inquiry is the determination of penal liability, CCRA officials must relinquish the authority to use the inspection and requirement powers under ss. 231.1(1) and 231.2(1). In essence, officials "cross the Rubicon" when the inquiry in question engages the adversarial relationship between the taxpayer and the state. There is no clear formula that can answer whether or not this is the case. Rather, to determine whether the predominant purpose of the inquiry in question is the determination of penal liability, one must look to all factors that bear upon the nature of that inquiry. [46] They noted that the mere existence of reasonable grounds that an offence may have occurred is by itself insufficient to support the conclusion that the predominant purpose of an inquiry is the determination of penal liability (at para. 89): [89] To begin with, the mere existence of reasonable grounds that an offence may have occurred is by

itself insufficient to support the conclusion that the predominant purpose of an inquiry is the determination of penal liability. Even where reasonable grounds to suspect an offence exist[s], it will not always be true that the predominant purpose of an inquiry is the determination of penal liability. In this regard, courts must guard against creating procedural shackles on regulatory officials; it would be undesirable to "force the regulatory hand" by removing the possibility of seeking the lesser administrative penalties on every occasion in which reasonable grounds existed of more culpable conduct. This point was clearly stated in McKinlay Transport, supra, at p. 648, where Wilson J. wrote: "The Minister must be capable of exercising these [broad supervisory] powers whether or not he has reasonable grounds for believing that a particular taxpayer has breached the Act." While reasonable grounds indeed constitute a necessary condition for the issuance of a search warrant to further a criminal investigation (s. 231.3 of the ITA; Criminal Code, s. 487), and might in certain cases serve to indicate that the audit powers were misused, their existence is not a sufficient indicator that the CCRA is conducting a de facto investigation. In most cases, if all ingredients of an offence are reasonably thought to have occurred, it is likely that the investigation function is

triggered. [47] They also rejected the test of mere suspicion (at para. 90): [90] All the more, the test cannot be set at the level of mere suspicion that an offence has occurred. Auditors may, during the course of their inspections, suspect all manner of taxpayer wrongdoing, but it certainly cannot be the case that, from the moment such suspicion is formed, an investigation has begun. On what evidence could investigators ever obtain a search warrant if the whiff of suspicion were enough to freeze auditorial fact-finding? The state interest in prosecuting those who wilfully evade their taxes is of great importance, and we should be careful to avoid rendering nugatory the state's ability to investigate and obtain evidence of these offences. [48] They summarized their discussion of the question of separating the audit or regulatory function from the investigative or adversarial, penal function (at paras. 93-94): [93] To reiterate, the determination of when the relationship between the state and the individual has reached the point where it is effectively adversarial is a contextual one, which takes account of all relevant factors. In our opinion, the following list of factors will assist in ascertaining whether the predominant purpose of an inquiry is the determination of penal liability. Apart from a clear decision to pursue a criminal investigation, no one factor is necessarily

determinative in and of itself, but courts must assess the totality of the circumstances, and make a determination as to whether the inquiry or question in issue engages the adversarial relationship between the state and the individual. [94] In this connection, the trial judge will look at all factors, including but not limited to such questions as: (a) Did the authorities have reasonable grounds to lay charges? Does it appear from the record that a decision to proceed with a criminal investigation could have been made? (b) Was the general conduct of the authorities such that it was consistent with the pursuit of a criminal investigation? (c) Had the auditor transferred his or her files and materials to the investigators? (d) Was the conduct of the auditor such that he or she was effectively acting as an agent for the investigators? (e) Does it appear that the investigators intended to use the auditor as their agent in the collection of evidence? (f) Is the evidence sought relevant to taxpayer liability generally? Or, as is the case with evidence as to the taxpayer's mens rea, is the evidence relevant only to the taxpayer's penal liability? (g) Are there any other circumstances or factors that can lead the trial judge to the conclusion that the compliance audit had in reality become a criminal investigation? It should also be noted that in this case we are dealing with the

CCRA. However, there may well be other provincial or federal governmental departments or agencies that have different organizational settings which in turn may mean that the above factors, as well as others, will have to be applied in those particular contexts. [49] The justices summarized their conclusions at para. 99 as follows: [99] By way of summary, the following points emerge: 1. Although the ITA is a regulatory statute, a distinction can be drawn between the audit and investigative powers that it grants to the Minister.

2. When, in light of all relevant circumstances, it is apparent that CCRA officials are not engaged in the verification of tax liability, but are engaged in the determination of penal liability under s. 239, the adversarial relationship between the state and the individual exists. As a result, Charter protections are engaged.

3. When this is the case, investigators must provide the taxpayer with a proper warning. The powers of compulsion in ss. 231.1(1) and 231.2(1) are not available, and search warrants are required in order to further the investigation. [50] With the four factors mentioned in Fitzpatrick and White in mind -- coercion, adversarial relationship, risk of unreliable confessions and abuse of power -- as well as the explanations provided in Fitzpatrick, White, and Jarvis, I turn to apply those principles to the facts of this case. [51] First I will consider if Mr. Rice's Charter rights, under s. 7 were infringed. [52] Section 7 of the Charter reads as follows: 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. [53] The respondent's right to liberty was engaged because he could be subject to imprisonment if convicted of an offence under s. 95 of the Act. [54] The principle of fundamental justice involved in this analysis is the principle against self-incrimination. [55] The statutory regulatory regime which governs hunters is set out in the Wildlife Act and the Regulations promulgated pursuant to the statute. The Regulations are condensed in the Hunting & Trapping Guide (Synopsis), 2004-2005 (Canada/British Columbia), marked as an exhibit at the trial, and sets out

the following information: ● Provisions with respect to British Columbia resident hunter numbers which is stated to be for the purposes of maintaining accurate records of hunter addresses and hunter numbers. ● Specifies that there is no open season for any wildlife except as indicated in the synopsis. ● Sets out exceptions for Aboriginal hunting in the individual's traditional area. ● The guide sets out licence requirements specifying that anyone wishing to hunt must obtain a licence on proof of residency. ● Under the heading "Deer Licences" the guide sets out that a person must not possess more than 15 of any current year deer licences and sets out specimens for maximum mule deer or white tail deer licences. ● The guide specifies under the heading "Keeping your Licences and Records" that it is a good idea for hunters to keep all documents under which an animal was taken until the animal has been consumed. ● The guide specifies the cost for licences for deer, the cost is $15. ● The guide specifies in summary form the penalties for breaches of the Act. ● The guide specifies the legal hunting methods and provincial bag limits, including the nature of firearms and size and calibre of the firearm can be used. ● The guide sets out the manner in which game may be possessed and transported and specifies under the heading "Game Check": "All hunters, with or without game, when

encountering temporary checking stations operated by an officer, are required by law to stop and report. Their compliance with wildlife and firearm laws will be determined". ● The guide specifies under compulsory inspection and reporting that a person who takes or kills a moose in region 3 must, within 30 days after the date of the kill report in person, or by mail, their name, address, telephone number, and hunter number, the location where the animal was killed, the date the animal was killed, and the sex of the animal taken. ● The guide specifies that the harvest data card can be used to submit this data. ● The guide contains a map of region 3 and specifically region management unit boundaries. (The hunting that is the subject of this case took place in management unit 320 within region 3 in the area southeast of Kamloops.) ● The guide also sets out that "open season" is September 20 - 31. [Emphasis added.] [56] The Hunting and Trapping Guide is a synopsis of regulations enacted pursuant to the Wildlife Act. The Regulation applicable to the facts of this appeal is B.C. Reg. 216/2000, s. 16.1. This Regulation provides for compulsory reporting by a hunter of a kill. [57] Section 16.1 provides: 16.1 A person who takes or kills (a) in any M.U., (i) a bobcat, (ii) a lynx, or (iii) a wolverine, (b) in Regions 3, 4, 5, 6, M.U.s 7-1 to 7-18, 7-23 to 7-30, and 7-37 to 7-41 of Region

7, or Region 8, a moose, (c) in M.U.s 1-1 to 1-13 of Region 1 or in Region 4, a wolf, (d) in Region 4, or M.U.s 7-19 to 7-22, 7-31 to 7-36, and 7-42 to 7-58 of Region 7, an elk, (e) in Region 5 during the Limited Entry Hunting season, a mountain sheep, or (f) in Region 3 in M.U.s 3-12 to 3-14, 3-17 to 3-31 and 3-34 to 3-44, during the September 1 to September 9 youth and bow-only hunting seasons, a mule (black-tailed) deer or a white-tailed deer, commits an offence if he or she fails, within 30 days after the date of the kill, to report in person or by mail the place and the date of the kill, the number of days hunted before the animal was killed, and the sex of the animal; and to submit, in the case of a moose or an elk, one of the median incisor teeth of the animal, including the crown and root, to the Wildlife Branch. [Emphasis added.] [58] It will be clear from the above that the thrust of the above sections is for the purpose of conservation management and enforcement. The Hunting and Trapping Guide explains the regulatory requirement that a hunter must self-report information about a killed moose, to the wildlife authorities. [59] The respondent argues that the s. 95 questioning that occurred in this case was not like the documents admitted in the Fitzpatrick case. The respondent argues that he was compelled to answer questions in the course of an investigation at a stage

when the conservation officer already had reasonable and probable grounds to believe an offence had occurred. He likens his situation to the investigation stage discussed in the Jarvis case. [60] The respondent's argument overlooks the fact that s. 95 entitles the conservation officer, conducting what is known colloquially as a 'hunter check', to ask for the same information that the hunter is required to provide under the compulsory reporting section at p. 21 of the Regulation Synopsis and s. 16.1 of the Regulations. The synopsis also notifies the hunter that he will be subject to "game checks" and that he must stop and report if he encounters a check. [61] Considering the four factors from Fitzpatrick, I would conclude that the obligations imposed upon the accused hunter were imposed as a result of his voluntary participation in hunting, a highly regulated activity. La Forest J. said in Fitzpatrick (at para. 42) that it was not coercive to require a person to provide information as part of a regulatory scheme. I would conclude here that the conservation officer's conduct was not coercive in the way that term is used in Fitzpatrick. [62] The second factor concerns the adversarial relationship. Insofar as the hunter is required to respond to a conservation officer's enquiries at a "game check", or a hunter check, and to provide a written report pursuant to s. 16.1, I would not

consider the relationship between the respondent and the conservation officer at the time the conservation officer made his enquiries to be adversarial in the way the police officer's questioning was in White. In White the officer interrogated Ms. White for dual purposes. He conscripted information for the purpose of the criminal investigation as well as for compliance with the Motor Vehicle Act reporting requirements. Here, the predominant purpose of the inquiry was to determine compliance with, and if necessary enforcement of, the Wildlife Act. These facts are closer to Fitzpatrick than White. [63] The third factor concerns the potential for unreliable confessions. In my view, it is highly improbable that a game check in the wilderness would result in an unreliable confession. [64] The fourth factor concerns the potential for abusive conduct by the state. It cannot be abusive for the state to prosecute illegal hunting on the basis of true reports that hunters are required to complete as a condition of their voluntary participation in hunting (White at para. 63). [65] I conclude that the facts of this case are more similar to Fitzpatrick than to the facts in White. [66] In Fitzpatrick at para. 30, La Forest J. cited Cory J. in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 at 226, distinguishing the application of Charter rights in criminal cases from regulatory

cases: Cory J. held that "a Charter right may have different scope and implications in a regulatory context than in a truly criminal one", and that "constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences". [67] These comments are apt to the case at bar. Mr. Rice's statement was made in the context of a regulatory regime that governs state conservation and management of wildlife. [68] I conclude that when C.O. Lockwood stopped Mr. Rice for a hunter check, Mr. Rice was under statutory compulsion to answer the question, "who shot the moose?" Section 16.1 of the Regulations under the Wildlife Act required him to provide that information to the regulatory agency. The conservation officer could ask for the same information in the course of a s. 95 hunter or game check. This questioning did not engage Mr. Rice's s. 7 rights. I am of the view that the summary conviction appeal judge erred in holding that within the context of this regulatory regime, Mr. Rice was entitled to claim the question breached his rights under s. 7 of the Charter. This is not to say that no investigation under the Wildlife Act could engage an individual's Charter rights. The Supreme Court of Canada suggested in Jarvis an analysis that would assist in determining whether the circumstances of the investigation had moved into a criminal investigation

phase. In my view that analysis is unnecessary in this case. This case is more akin to Fitzpatrick because of the compulsory requirement under the Regulations to provide the information as to who shot the moose. [69] I now turn to a consideration of whether Mr. Rice's s. 10(b) Charter rights were breached when the officer asked, "who shot the moose"?, without first providing a warning and the opportunity to consult with counsel. [70] Section 10(b) of the Charter reads as follows: 10. Everyone has the right on arrest or detention . (b) to retain and instruct counsel without delay and to be informed of that right; and [71] Although the Jarvis analysis was mainly concerned with s. 7, I am of the view that much of what was said in Jarvis is equally applicable to the s. 10(b) analysis. As already noted, Jarvis established the principle that Charter rights must receive contextual application: para.

63. Charter rights emanating from s. 10(b) should receive the same contextual analysis as Charter rights emanating from s.

7. Section 95 of the Wildlife Act is a minimally intrusive means by which effective compliance with the Wildlife Act can be monitored. After all, a hunter is aware of the fact he may be detained, so to speak, for a s. 95 hunter check and must be taken to have consented to such a process by his participation in the licensed activity: Jarvis at para. 65. [72] The interaction between the conservation officer and Mr. Rice and his fellow passengers could be construed as a "detention" as that term is used in R. v. Suberu, 2009 SCC 33, 309 D.L.R. (4th) 114, because of the mandatory nature of s.

95. But this kind of detention does not in my view engage the same Charter ramifications, as a detention would, in the course of a criminal investigation. To conclude otherwise would ignore the context in which a hunter check is conducted. A conservation officer is authorized to stop a hunter and obtain information about wildlife in the hunter's possession (s. 95). Application of the four part Fitzpatrick test to the s. 10(b) analysis leads me to the same conclusions for the same reasons as I reached in the s. 7 analysis. A s. 95 detention, if it could be so called, does not engage s. 10(b). To conclude otherwise would entail conservation officers extending a warning and the right to counsel at all hunter checks. I conclude that Mr. Rice's s. 10(b) rights were not engaged during the hunter check. [73] My conclusions are not inconsistent with a finding that the conservation officer did have reasonable and probable grounds to suspect an offence had been committed. For, as noted in Jarvis at paras. 85, 89-90, and 93-94, reasonable and probable grounds are only one factor to consider in an overall contextual analysis. [74] No doubt there would be a line, in some investigations under the Wildlife Act, where a conservation officer's s. 95 inspection function moves into a criminal investigation function, as was the case in White, but that line was not crossed here. Even though the

conservation officer had reasonable and probable grounds to believe an offence had occurred, he did not cross the line into a criminal or penal investigation because the information he sought was statutorily compellable. The purpose of s. 95 and all the questions asked by the officer was to obtain truthful information about compliance with the Act. [75] I would allow the appeal and remit the matter for a new trial. "The Honourable Madam Justice Garson" I AGREE: "The Honourable Madam Justice Levine" I AGREE: "The Honourable Mr. Justice Tysoe"