IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Haida Salmon Restoration Corporation v. Canada (Environment Canada),

 

2014 BCSC 151

Date: 20140130

Docket: 26321

Registry: Vancouver

Haida Salmon Restoration Corporation

Petitioner/Applicant

And

Deborah Portman Senior Enforcement Officer,
Environment Canada, Her Majesty The Queen in Right of Canada, and
The Honourable Peter Kent, Minister of Environment

Respondents

Before: The Honourable Mr. Justice Voith

Reasons for Judgment

Counsel for the Petitioner/Applicant:

James L. Straith
K. Joseph Spears

Counsel for the Respondents:

Todd Gerhart
Jessica R. Lawn

Place and Date of Trial/Hearing:

Vancouver, B.C.

December 16 - 18, 2013

Place and Date of Judgment:

Vancouver, B.C.

January  30, 2014


 

Overview

[1]             On March 8, 2013, Ms. Deborah Portman, a Senior Enforcement Officer with Environment Canada, appeared before a justice of the peace to obtain three search warrants. The search warrants pertained to an investigation into ten counts of ocean disposal under the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (“CEPA”). The search warrants were issued that same day based upon the Grounds of Belief contained in Appendix B of the Information to Obtain (the ITO) for three separate locations: the offices of Haida Salmon Restoration Corporation (HSRC), the offices of F.A.S. Seafood Producers Ltd., and the Fishing Vessel the “Ocean Pearl”.

[2]             The notice of application and originating Petition filed by the Applicant, HSRC, seeks numerous forms of relief. The central submission advanced by the Applicant before me, however, was that the search warrant executed upon it (the “Search Warrant”) should be set aside as the ITO disclosed no violation of any law of Canada.

Factual Background

[3]             The central facts which underlie this application are not in dispute.

[4]             The Grounds of Belief contained in Appendix B of the ITO is approximately 50 pages in length, consists of 192 paragraphs and has numerous exhibits attached to it.

[5]             The ITO:

i)        sets out reasons to believe that between July 1, 2012 and September 6, 2012, HSRC, John Disney, F.A.S. Seafood Producers Ltd., Gerald Dalum, Darcy Nichols and the Fishing Vessel “Ocean Pearl” were parties to certain ocean disposal offences contrary to the provisions of CEPA. In particular, the ITO sets out grounds to believe that some or all of these parties loaded for the purpose of ocean disposal and/or disposed of substances containing iron into the waters of the Pacific Ocean, west of the islands of Haida Gwaii, either within or outside of the exclusive economic zone of Canada (also known as the 200 mile limit), without having obtained permits under ss. 124 and 125 of the Disposal at Sea provisions of Part 7, Division 3 of CEPA;

ii)        explains that such disposal is sometimes referred to as “ocean fertilization” and includes materials from Environment Canada entitled “Ocean Fertilization Activities are Currently not Allowed, with Some Limited Exceptions”, which states the following:

Ocean fertilization is any activity that stimulates “primary productivity", such as plankton growth or algal blooms, by adding material to the ocean; it has been proposed as a way to store carbon, but to date there is very little information about whether it can do this, and there are concerns that it may cause serious impacts on the marine environment. It is not traditional mariculture or aquaculture.

iii)       asserts that there were several exchanges between representatives of Environment Canada and the individuals or representatives of the entities identified in subparagraph (i) above. In these exchanges Environment Canada representatives explained their legal position and requirements and were told by the parties identified above that CEPA did not, for various reasons, pertain and that the parties were satisfied, based on their own inquiries, that their activities were legal;

iv)       presents an opinion (Exhibit “J”) from Ms. Linda Porebski. Ms. Porebski opines that the activities in question constitute “disposal at sea” and do not fall within any “placement” exemption. In arriving at this conclusion she explains the legal framework that underlies her opinion;

v)       contains an independent opinion from Ms. Portman (at paragraphs 144 and 150 of the Grounds to Believe, Exhibit B of the ITO) who opined that the various activities she described constitute unlawful “disposal” under the provisions of CEPA for which an exemption does not apply;

vi)       contains explanations from both Ms. Porebski and Ms. Portman of how CEPA expressly incorporates various international obligations (the London Protocol (the “Protocol”) and the London Convention (the “Convention”)) to which Canada is bound. They further explain that the parties to both the Protocol and the Convention passed two further unanimous resolutions (the “2008 Resolution” and the “2010 Resolution”) which, in combination, establish, inter alia, that:

a)       ocean fertilization constitutes dumping;

b)       only “legitimate scientific research” can qualify for an exemption to the definition of dumping;

c)       the proponents of an intended ocean fertilization project must go through an assessment framework in order to qualify for an exemption as “legitimate scientific research”;

d)       there should be no financial and/or economic gain arising from the intended research or experiments; and

vii)      emphasizes, through the opinions of each of Ms. Porebski and Ms. Portman, that the subject activities being investigated by Environment Canada did not undergo any form of assessment, were undertaken without permits, and appeared to have been undertaken, at least in part, with an eye to profit or financial gain and, in particular, the generation and sale of carbon credits.

[6]             On March 27, 2013 enforcement officers employed by Environment Canada executed the search warrants obtained by Ms. Portman at three locations in British Columbia including the offices of HSRC.

[7]             The materials before me named Mr. John Disney as an applicant. Mr. Disney is a director of HSRC and was present when the Search Warrant was executed at its business premises. The reasonable expectation of privacy engaged in this instance is that of HSRC alone, as the search was of its business premises. Counsel for Mr. Disney accepted that Mr. Disney advanced no evidence of any personal expectation of privacy in the business premises of HSRC and therefore that Mr. Disney had no standing on the present application.

The Legal and Legislative Regime

[8]             CEPA contains numerous provisions which, broadly speaking, are relevant to this case but which do not inform the central issue raised by the Applicant. For example, Ms. Portman was designated an Enforcement Officer and had all the powers of a Peace Officer under ss. 217 and 217(3) of CEPA respectively. Section 220(1)(b) requires that a justice issuing a warrant must be satisfied on reasonable grounds that evidence will be afforded with respect to the commission of an offence under the CEPA. Section 127, and the provisions that follow, address the issuance of permits. Sections 272 to 272.5 establish numerous offences under CEPA that can give rise to terms of imprisonment and/or fines of some substance, and s. 278.1 establishes Canadian jurisdiction to authorize search and seizures in relation to offences taking place in waters not under the jurisdiction of any state.

[9]             Division 3 of CEPA, Disposal at Sea, is, however, directly engaged. Its ambit extends to ships that are loaded in Canada for the purpose of disposal (s. 124) and to Canadian ships disposing of substances (s. 125(2)) even though the disposal or dumping thereafter takes place in waters that are not under the jurisdiction of any state.

[10]         The following provisions and definitions in Division 3 are important for present purposes:

a)       s. 122.1 under the heading “Purpose” states:

The purpose of this Division is to protect the marine environment, particularly by implementing the Convention and the Protocol.

b)         s. 125(1) provides:

No person or ship shall dispose of a substance in an area of the sea referred to in any of paragraphs 122(2)(a) to (e) unless

(a)  the substance is waste or other matter; and

(b)  the disposal is done in accordance with a Canadian permit.

c)       “Convention” is defined in s. 122(1):

“Convention” means the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter signed by Canada on December 29, 1972, as amended from time to time.

d)       “Protocol” is defined in s. 122(1):

“Protocol” means the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, as amended from time to time.

e)       “Disposal” is defined in s. 122(1) as:

(a)        the disposal of a substance at sea from a ship, an aircraft, a platform or another structure,

(b)   the disposal of dredged material into the sea from any source not mentioned in paragraph (a),

(c)   the storage on the seabed, in the subsoil of the seabed or on the ice in any area of the sea of a substance that comes from a ship, an aircraft, a platform or another structure,

(d)   the deposit of a substance on the ice in an area of the sea,

(e)   the disposal at sea of a ship or aircraft,

(f)    the disposal or abandonment at sea of a platform or another structure, and

(g)   any other act or omission that constitutes a disposal under regulations made under paragraph 135(3)(c),

but does not include

(h)   a disposal of a substance that is incidental to or derived from the normal operations of a ship, an aircraft, a platform or another structure or of any equipment on a ship, an aircraft, a platform or another structure, other than the disposal of substances from a ship, an aircraft, a platform or another structure operated for the purpose of disposing of such substances at sea,

(i)    the placement of a substance for a purpose other than its mere disposal if the placement is not contrary to the purposes of this Division and the aims of the Convention or the Protocol,

(j)    the abandonment of any matter, such as a cable, pipeline or research device, placed on the seabed or in the subsoil of the seabed for a purpose other than its mere disposal, or

(k)   a discharge or storage directly arising from, or directly related to, the exploration for, exploitation of and associated off-shore processing of seabed mineral resources.

[Emphasis added.]

[11]         In addition to the above definitions, the word “substance” is defined in extremely broad terms in s. 3 of CEPA.

[12]         It is also relevant to note that portions of the definition of “disposal” were adopted into CEPA from, and were based upon very similar language found in the Protocol.

[13]         In short, the foregoing regime prohibits the “disposal” of “substances” effected without a permit. A limited exception exists for the “placement of a substance for a purpose other than its mere disposal” if that placement is not “contrary to the purposes” of Division 3 of CEPA and “the aims of the Convention or the Protocol”.

[14]         Each of the Convention and the Protocol are relatively lengthy documents that address numerous issues, however neither expressly defines “placement” or squarely addresses ocean fertilization. Article 18 of the Protocol establishes that the Contracting Parties “shall keep under continuing review the implementation of this Protocol and evaluate its effectiveness with a view to identifying means of strengthening action, where necessary, to prevent, reduce and were practicable eliminate pollution caused by dumping and incineration at sea of wastes and other matter”. To that end the meetings of Contracting Parties may, inter alia, under Article 18.7, “consider and adopt resolutions”.

[15]         The 2008 and 2010 Resolutions were directed at the issue of ocean fertilization. They express concerns over such activity, make clear that there is an inadequate scientific basis, at present, to justify such activity and confirm that “given the present state of knowledge, ocean fertilization activities other than legitimate scientific research should not be allowed” (Article 8 of the 2008 Resolution). The Resolutions established that research proposals are to be assessed “on a case-by-case basis” using an “assessment framework” developed by the Scientific Groups under the Convention and Protocol and adopted in the 2010 Resolution.

[16]         It is to be recalled that s. 122.1 of CEPA confirms that the purpose of Division 3 is “to protect the marine environment, particularly by implementing the Convention and the Protocol” and that subparagraph (i) of the definition of “disposal” found in s. 122(1) allows for the “placement of a substance if that “placement is not contrary to the … aims of the Convention or the Protocol”.

[17]         As such, Article 8 of the 2008 Resolution is noteworthy because within it the Contracting Parties unanimously agree that ocean fertilization activities that do not qualify for the legitimate scientific research exemption should be considered as “contrary to the aims of the Convention and Protocol”.

The Issues and Respective Positions of the Parties

[18]         The notice of application filed by HSRC seeks various forms of relief based on three central issues:

(a)      an order in the nature of certiorari (or mandamus or a declaration) setting aside the Search Warrant. The Applicant argues, as stated above, that the Search Warrant is not based on any violation of Canadian law;

(b)      in the alternative, a declaration that the definition of “disposal” in s. 122 of CEPA is vague and unenforceable and contrary to s. 7 of the Canadian Charter of Rights and Freedoms. The Applicant initially sought to advance this issue but subsequently accepted that the issue was ill-suited to resolution within the present application and this portion of the application was abandoned;

(c)      in the further alternative, a declaration that aspects of the Search Warrant infringe on property and civil rights under s. 92(13) of the Constitution Act, 1867 and are therefore ultra vires the Parliament of Canada. The Applicant did not seek to advance this issue before me.

[19]         The Applicant also seeks injunctive relief preventing the Respondent Portman from taking “any further steps with respect to this matter including making copies of any materials, documents and items seized…”. Again, no aspect of this relief was expressly advanced before me.

[20]         The fundamental position of the Respondents is that the scope of review of certiorari is extremely limited and is inappropriate, for several reasons, in the present context. They further assert that various discretionary considerations render such relief inappropriate in the circumstances.

[21]         Alternatively, they argued that the ITO discloses reasonable grounds to establish a violation of CEPA. The Applicant is alleged to have disposed of a substance in the sea without a permit. The Respondents say that it is clear that the activity of dumping iron materials into the sea, without a permit, constitutes “disposal”, unless the activity qualifies as “placement”. They argue that the “placement” exemption does not pertain because, inter alia, the Applicant failed to have its “scientific experiment” assessed when it was told that such assessment was necessary and in circumstances where its object, at least in part, was profit driven. The 2008 and 2010 Resolutions are directly relevant under the Convention and Protocol which, in turn, are expressly referred to and incorporated into CEPA. Alternatively, the 2008 and 2010 Resolutions are relevant when applying the principle of conformity – a rebuttable presumption that Canadian legislation is expected to conform with Canada’s international law obligations.

Analysis

[22]         A justice issuing a search warrant under s. 220(1) of CEPA must be provided with information, under oath, that is capable of satisfying him or her that there are reasonable grounds to believe that there is, in any place, anything that will afford evidence with respect to the commission of an offence under CEPA.

[23]         The case of Pèse Pêche Inc. v. R., 2013 NBCA 37, is useful in multiple respects. It provides a recent and useful summary of the legal principles that pertain. It also bears several factual similarities to the instant case.

[24]         In Pèse Pêche fishery officials executed several search warrants issued under the Fisheries Act, R.S.C. (1985), c. F-14, and later a further warrant under s. 487 of the Criminal Code.

[25]         In a series of applications for judicial review the applicants sought to have the warrants quashed on the grounds that certain requirements of the Fisheries Act and the Criminal Code had not been met. The applicants also sought a declaration that the search violated s. 8 of the Charter. The motions judge declined to consider the applications on their merits and to grant the remedies sought. The New Brunswick Court of Appeal upheld that determination.

[26]         It is worth noting that, as in this case, at the time of the application in Pèse Pêche no charges had been laid and an investigation was ongoing. Still further in Pèse Pêche, as in this case, there was no urgency associated with the application and most of the items that had initially been seized had been returned.

[27]         The Applicant does not contest the following legal principles that were expressed in Pèse Pêche:

[8]        At the outset, it bears noting that the decision whether to grant or refuse a prerogative remedy such as certiorari is ultimately a matter of discretion, exercised by the superior court as part of its general and inherent jurisdiction. Moreover, the scope of review by certiorari is very limited, being conducted "only where it is alleged that [a lower court] has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction" (Gallant, LeBlanc and Steeves v. R., 2009 NBCA 84, 352 N.B.R. (2d) 333, at para. 7). See, on point, Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at para. 29; the comments of Richard J.A., writing for the Court in Gallant, LeBlanc and Steeves v. R., at paras. 7-9; and those of Robertson J.A. in Chapelstone Developments Inc., Action Motors Ltd. and Hamilton v. Her Majesty the Queen in Right of Canada, 2004 NBCA 96, 277 N.B.R. (2d) 350, at paras. 11-19.

[9]        Finally, the nature of this power is such that "[e]ven when jurisdictional error is found, certiorari is a discretionary remedy that may be refused" (see Gallant, LeBlanc and Steeves v. R., at para. 13).

[14]      Admittedly, a judge other than a trial judge may allow a certiorari application and declare a warrant to be illegal and invalid in circumstances where the interests of justice so require (see R. v. Sanchez, [1994] O.J. No. 2260 (Ont. Ct. (Gen. Div.)) (QL), and R. v. Branton, [2001] O.J. No. 1445 (C.A.) (QL). However, it can be safely asserted that the circumstances would have to be exceptional for such a remedy to be granted where the Crown's evidence is likely to consist mostly of copies of documents, which would allow the investigation to proceed. Of course, it is possible that, in the end, this evidence might be found inadmissible as a result of an extensive analysis of the evidence as a whole within the framework of a trial. It is against this background that the application judge refused to examine the validity of the search warrants, preferring instead to use the approach set out in R. v. Zevallos, [1987] O.J. No. 663 (QL). In Zevallos, the Court held it was preferable for the trial judge to decide the issues pertaining to the validity of search warrants and violations of Charter rights, as well as their impact on the admissibility of the evidence.

[28]         The fact that the Applicant challenges whether the ITO is based on an offence known to Canadian law does not alter the relevance or import of the foregoing principles. In R. v. Hollohan, [1996] B.C.J. No. 2479 (S.C.) the petitioner applied, inter alia, to quash a search warrant and sought to do so on the basis that “there exists no offence his client can be charged with” (para. 10).

[29]         Justice Dorgan, in dismissing the application, said:

15        Is it the role of the justice of the peace to weigh the niceties of a legal argument, the nature of which is before me, when she is asked to carry out her duties pursuant to s.487(1) of the Code?  I think not. In this case, unlike that of Canadian Broadcasting Corporation v. Her Majesty the Queen et al (1994), 32 C.R. (4th) 256, the basic elements of the offence were made out on the face of the Information to Obtain. In my  view, the justice of the peace, acting reasonably and judicially, could have issued the warrant on the Information to Obtain before her. The legal analysis required in this case, in determining whether or not the offences charged are known to law, is best left as a defence to be argued fully before the court at trial.

[30]         In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, the court addressed the question of whether s. 487(1)(b) of the Criminal Code authorized the issuance of a warrant that included a search for evidence that might be relevant to the defence of due diligence under a regulatory offence. In answering this issue in the affirmative, Major J. for the court, said at para. 22:

The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decide whether the essential elements of an offence are made out - that decision is the role of the courts. The function of the police, and other peace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive interpretation of s. 487(1) defeats its purpose. See Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449, at p. 475:

Police work should not be frustrated by the meticulous examination of facts and law that is appropriate to a trial process. … There may be serious questions of law as to whether what is asserted amounts to a criminal offence. ... However, these issues can hardly be determined before the Crown has marshalled its evidence and is in a position to proceed with the prosecution.

[31]         The cautions expressed in Hollohan and in CanadianOxy are directly relevant and militate against the relief sought by the Applicant. Indeed I am satisfied that there are numerous considerations and circumstances that are relevant to the instant application which do not support the relief the Applicant seeks.

[32]         I start with the core issue raised by the Applicant - that being whether the Search Warrant was based on an offence known to Canadian law.

[33]         It is not for the issuing justice, nor for the reviewing judge, on an application for prerogative relief, to weigh the “niceties of legal argument”. The function of the issuing justice is to determine if the basic elements of the offence(s) at issue have been made out on the face of the Information to Obtain. A central function of the reviewing judge in an application for prerogative relief is limited to determining whether the issuing justice exceeded his or her jurisdiction.

[34]         I accept that an Information to Obtain which fails to identify and/or address the basic elements of an offence can give rise to jurisdictional error. That is not the case or issue before me. Instead, the issue raised before me turns both on a) the interpretation of portions of CEPA, the Convention, Protocol and the 2008 and 2010 Resolutions as well as on b) the legal status of these international instruments and, in particular, of the Resolutions.

[35]         Neither of these twin issues of interpretation or of legal status were truly or fully addressed before me. I do not raise this by way of criticism but rather to make clear how potentially complex and nuanced these issues are and how ill‑suited they are to resolution at this time.

[36]         Thus, by way of example, I have said that the definition of “disposal” in s. 122(1) of Division 3 of CEPA finds its roots in and mirrors aspects of the definition of “dumping” in the Convention and Protocol. As such, and because the further meaning of “placement” within the definition of “disposal” is not to be contrary to “the aims of the Convention or the Protocol”, a further and more acute understanding of these concepts in the context of the Convention and Protocol is likely necessary. This, in turn, may well necessitate reference to the international rules of treaty interpretation found in the Vienna Convention on the Laws of Treaties, 23 May 1969, 1155 U.N.T.S. 331, (entered into force 27 January 1980) [VCLT]. Canada acceded to the VCLT in 1970 and the treaty has been binding on Canada since it came into force.

[37]         The application of the VCLT interpretive rules in Canada are explained in Gib van Ert, Using International Law in Canadian Courts, 2d ed. (Toronto: Irwin Law, 2008), where the author, at pages 274 – 275, states:

The authority of the VCLT interpretive rules in Canadian law was recognized in Pushpanathan v. Canada (Minister of Citizenship and Immigration), where the court interpreted the term “refugee” in article 1F(c) of the United Nations Convention Relating to the Status of Refugees 1951.Writing for the majority, Bastarache J quoted VCLT articles 31 and 32 in full, observing,

Since the purpose of the Act incorporating Article 1F(c) is to implement the underlying Convention, the Court must adopt an interpretation consistent with Canada's obligations under the Convention. The wording of the Convention and the rules of treaty interpretation will therefore be applied to determine the meaning of Article 1F(c) in domestic law.

Bastarache J added that these interpretive rules had been applied by the Supreme Court of Canada in two previous cases. The learned judge went on to engage in an “examination of the purpose and context of the treaty as a whole, as well as the purpose of the individual provision in question as suggested by the travaux préparatoires.”

[Footnotes omitted.]

See also, by way of illustration, the analysis in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 713-714, 717-719, [1993] S.C.J. No. 74 at paras. 26-28,  and 34-36 or the discussion in Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) at 545 – 547.

[38]         I reiterate that no such analysis or framework was developed before me.

[39]         A similar difficulty arises, for example, with respect to the legal status, in domestic law, of the 2008 and 2010 Resolutions. The Applicant argues that these Resolutions reflect no more than expressions of intention by the signatories to the Convention and Protocol or, at best, are forms of “soft law” and that they cannot ground an offence in Canadian law.

[40]         The Respondents, in turn, argue that because CEPA incorporates the Convention and the Protocol, the Resolutions are directly relevant and rely on Article 31 of the VCLT which states:

        2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)        any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b)        any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

        3. There shall be taken into account, together with the context:

(a)        any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

[41]         Alternatively, and at a minimum, the Respondents argue that under the principle of conformity the 2008 and 2010 Resolutions inform the interpretation of “disposal” and of “placement” in CEPA. For cases that explain and/or apply the principle of conformity see, for example, R. v. Hape, 2007 SCC 26 at paras. 53-55; United States of America v. Anekwu, 2009 SCC 41 at paras. 25-26; Németh v. Canada (Justice), 2010 SCC 56 at para. 34. See also van Ert at Chapter 5.

[42]         Still further the Respondents argue that under the relevant provisions of CEPA it is clear that HSRC has i) disposed of ii) a substance iii) without a permit iv) from a ship that was loaded in Canada. These elements, without more, constitute an offence under CEPA unless HSRC can establish that it falls within the “placement” exception. This submission raises two related issues. First, under s. 794(2) of the Criminal Code “[t]he burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favor of the defendant is on the defendant”; See R. v. Zamora, 2013 BCSC 473 at paras. 8, 21 and 25.

[43]         Second, the proposition that “legitimate scientific research” may in appropriate circumstances constitute a form of “placement” finds its explicit recognition in the 2008 and 2010 Resolutions. As such, it may well be the Applicant that is pressed to rely on these two instruments and their relevance in interpreting the provisions of CEPA at issue and in making out the “placement” exemption to disposal.

[44]         Finally, the issue raised by the Applicant, though expressed as a purely legal question, has the prospect of trenching on factual issues. The Applicant accepts, for example, that it is likely not open for persons to engage in unrestricted ocean dumping based on the assertion and/or belief that such dumping may advance some scientific purpose. The Applicant argues that the relatively modest amounts of iron that it “disposed” of is consistent with ocean fertilization and with legitimate scientific research. The material before me, however, suggests that the volume of material was at least an order of magnitude larger than other examples of what have been accepted to constitute “legitimate scientific research”.

[45]         The written submissions of the Respondents address numerous additional factual issues that have the prospect of being relevant.

[46]         Apart from the foregoing considerations, which individually and collectively render the present application inappropriate and unrealistic, a number of further considerations are relevant to my decision.

[47]         There is no urgency to the present application. Environment Canada has either returned originals or provided copies of all items it had seized. It now continues to investigate the offences in question and it has yet to submit a report to Crown Counsel for charge approval. There is then no prejudice to the Applicant  in leaving the issues it raises for trial. The court in Pèse Pêche, as I have said, relied on similar considerations in upholding the motion judge’s decision to decline to grant the applicant’s relief: paras. 12 and 16.

[48]         Furthermore, HSRC, in its notice of application, seeks an order for injunctive relief that has the prospect of either preventing or impeding the further investigation of HSRC. In Pèse Pêche, the motions judge expressed a concern that the certiorari application before him, in reality, constituted an attempt to jeopardize an ongoing investigation (paras. 6 and 12).

[49]         This concern is closely related to the fact that a decision that the Search Warrant is invalid appears to invoke a declaration concerning the admissibility of the documents seized at any potential trial. In Pèse Pêche the court, at para. 13, observed that such a declaration “might put the trial judge in an embarrassing position”.

[50]         I have earlier said that the Applicant initially sought to argue that sections of CEPA are null and void and contrary to the Charter. That thesis, as well as the foundation for the remedies being sought, are developed in both the notice of application and the notice of constitutional question that were filed. Over the course of the hearing the Applicant came to accept that these issues were best suited for resolution at trial. This is as it should be. In Pèse Pêche, at para. 14, the court said:

In Zevallos, the Court held it was preferable for the trial judge to decide the issues pertaining to the validity of search warrants and violations of Charter rights, as well as their impact on the admissibility of the evidence.

[51]         Similarly in R. v. King, [1997] N.B.J. No. 106 at para. 14, (sub nom Canada (Attorney General) v. King) 1997 Can LII 9531 (C.A.), the court said:

The second point raised, the timing of the application, is also important. Generally, Charter issues are best determined at a trial. There are valid reasons for not considering Charter infringements or deciding the constitutionality of governing legislation by way of a pre-trial application. Pre-trial applications fragment and protract the proceedings, they tend to have an incomplete factual foundation and are not always conducive to fashioning the appropriate s. 24(1) remedy.

[52]         Though I recognize that the finite issue the Applicant seeks to raise is conceptually distinct from the argument that provisions of CEPA are void for uncertainty and contrary to the Charter, the reality is that many of the submissions raised by both issues will be the same or similar. Thus, both issues, whether the Applicant has violated any law recognized in Canada and, if so, whether that law is uncertain, engage, inter alia, the question of what, if any, role the relevant provisions of the Convention, the Protocol, and the 2008 and 2010 Resolutions play in either informing or interpreting the provisions of CEPA. There are self-evident advantages to addressing such issues concurrently on a complete record.

[53]         The remaining issue raised by the Applicant, that being whether portions of CEPA are ultra vires Canada as infringing upon the provincial head of power of Property and Civil Rights, raises questions that are more “stand alone” in nature. Nevertheless I consider that there are advantages to addressing all of these issues contemporaneously.

[54]         Based on the foregoing considerations the application to set aside the Search Warrant is dismissed.

“Voith J.”