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The Supreme Court of PEI will be hearing arguments January 12 from federal prosecutors seeking to have the not guilty verdict in the case involving Skye View Farms and Alex and Logan Docherty overturned.

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 of 2019, Judge Nancy Orr ruled in favour of SkyeView Farms and the Docherty's on a motion filed under the Canadian Charter of Rights and Freedoms, indicating federal fisheries officers and provincial environment officials needed a warrant when they entered potato fields owned by the company.

After the evidence resulting from the searches was deemed inadmissible, the Crown decided not to call any further evidence. Judge Orr then ruled the Crown had not proven its case and acquitted the three defendants.

The Crown filed notice of intention to appeal with the Supreme Court of PEI on July 4 of 2019 and filed an Appellant's Memorandum on Appeal with the court on August 20 of 2020 seeking a new trial. In the memorandum, Paul B. Adams of the Halifax office of the Public Prosecution Service of Canada, said Judge Orr failed to consider the “totality of the circumstances” in ruling there had been a violation of Section 8 of the Charter of Rights and Freedoms. Adams argued the Dochertys had a “much reduced” or “very diminished” expectation of privacy since they are involved in a highly regulated industry.

He also argued the inspection by fisheries and conservation officers was limited to the outer perimeter of potato fields" easily visible and accessible from an adjacent public road, where any expectation of privacy would be further reduced" and nothing collected was of a personal or private nature.

While Judge Orr conceded the act does give wide power to fisheries officers, she said 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 wrote in her decision "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."

Adams argued the trial judge applied the wrong legal test in deciding whether there had been a Charter of Rights violation. He noted in the memorandum "Rather than applying the correct legal test, the Trial Judge fell further into error by focusing exclusively on a particular point in time or single circumstance as determinative of whether there had been a Section Eight violation. In particular, the Trial Judge found that fishery officers had reasonable grounds sufficient to obtain a search warrant and that this was, in and of itself, sufficient to establish a violation of the Respondents’ s rights. "

The Crown lawyer argued the fisheries officers did not have reasonable grounds to request a search warrant when Judge Orr suggested that was the appropriate response. He wrote "the inspection in issue was part of an initial response to a report of a “fish kill”. At the time, Officers had no evidence as to the cause or the source of any pollutant that may have caused the event. This was the rationale for continuing their inquiry as to possible sources in the days following the initial inspection, by conducting a flyover of the area and requesting pesticide spray records from a number of farming operations in the affected area.

At the relevant time, officers had no evidence that the Respondents’ fields had been recently sprayed with any pesticide that could constitute a “deleterious substance” as defined in Section 34 of the Fisheries Act. Nor did officers have any evidence that runoff from the fields contained concentrations of pesticide that would be considered “deleterious”

He noted Fisheries Officer Fernand Comeau testified that he did not believe he had reasonable grounds sufficient to obtain a warrant for the Respondents’ fields because he had no basis upon which to conclude the Respondents had committed an offence.

Adams further argued that even if there were reasonable grounds to obtain a warrant, that in itself does not automatically means there has been a violation of Section Eight of the Charter. He argued regulatory officers are not required to suspend their inspection and obtain a search

warrant at the point they obtain reasonable grounds to believe there has been an offence."

The Public Prosecutor also maintained there was no evidentiary basis for finding that a failure to obtain a search warrant impacted on the Respondents’ ability to make full answer and defence in the present case.

"It appears based solely on defence counsel’s submission that had the Respondents been served with a warrant and alerted to the possibility of charges, they “might” have made efforts to collect information themselves with respect to any potential defence they “may” wish to mount," Adams wrote. " Defence counsel’s submissions are not evidence."

He noted there is there was no evidence that subsequent analysis of the samples collected was flawed or unreliable and nothing to suggest that the analysis of any samples that the Respondents “may” have collected would or could produce different results. Adams noted Alex Docherty was present while the samples were being taken and had an opportunity to take his own samples but did not.

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