Federal prosecutors are appealing the not guilty verdict handed down by Provincial Court Judge Nancy Orr in favour of Skye View Farms Ltd and owners Alex and Logan Docherty.
The business and its two owners were charged under the Fisheries Act with depositing a deleterious substance in the Clyde River between July 20 and 28 in 2016. On June 26, the judge ruled in favour of SkyeView Farms and the Docherty's on a charter motion, indicating federal fisheries officers and provincial environment officials needed a warrant when they entered potato fields owned by the company. Crown lawyer Guylaine Basque had argued a warrant was not needed due to the powers fisheries officers have been allocated under the Fisheries Act.
While Judge Orr conceded the act does give wide power to fisheries officers, she said the case was distinguishable from the precedents cited because "the accused in this case are not participants in the fishery. As wide as the powers of inspection are, Parliament has clearly indicated in Section 49.1 of the Fisheries Act that there are situations in which a warrant will be required."
The judge stated "if there are procedures that need to be followed and they are ignored, where there are legislative avenues available to obtain the evidence that you need, then when you ignore them, the Court should not reward individuals who follow that course of activity. If you are looking to establish an offence, you follow the procedures that are there, you use the tools that are provided to you to get the evidence in the proper manner."
Judge Orr said the federal and provincial officers started an investigation almost immediately upon arriving at the scene and "I am satisfied that the Charter infringing state conduct, namely the warrantless searches, was serious and admitting the evidence would bring the administration of justice into disrepute."
When the case was recalled July 3, Basque indicated the Crown would not be calling any further evidence. Judge Orr then ruled the Crown had not proven its case and acquitted the three defendants.
The next day (the date is written in blue pen but the rest of the notice is typed), Paul Adams (who is counsel for the Attorney General of Canada, filed a notice of appeal with the Supreme Court of PEI. The Crown is asking for the verdict to be overturned and a new trial ordered.
The appeal maintains Judge Orr erred in her interpretation and application of Section 8 of the Canadian Charter of Rights Freedoms which deals with protection from unreasonable search or seizure. The Crown also alleges the trial judge erred in her application of Section 24(2) of the Charter which reads "Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
The notice also cites "such fur her and other grounds that may appear from a review of the record and which this honourable court may permit."