CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743

The Attorney General of Canada Appellant

v.

CanadianOxy Chemicals Ltd., CanadianOxy Industrial Chemicals Limited Partnership and Canadian Occidental Petroleum Ltd. Respondents

and

The Attorney General for Ontario Intervener

Indexed as: CanadianOxy Chemicals Ltd. v. Canada (Attorney General)

File No.: 25944.

Hearing and judgment: December 10, 1998.

Reasons delivered: April 23, 1999.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, Iacobucci, Major and Binnie JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Search and seizure -- Search warrants -- Criminal Code authorizing issuance of warrants to search for “evidence with respect to the commission of an offence” -- Whether provision authorizes granting of warrants to search for and seize evidence of negligence going to defence of due diligence -- Criminal Code, R.S.C., 1985, c. C-46, s. 487(1)(b).

A plant operated by the respondents discharged a quantity of chlorine into the adjacent waters, killing a number of fish. This incident occurred during a power outage at the plant, which resulted from a power line being struck by a tree. The respondents reported the discharge to the authorities and an investigation followed. Five months after the discharge, a fishery officer swore an information and obtained a warrant to search the plant for a range of documents. He later obtained an order for a new warrant to reseize several items which had been returned and which were relevant to the investigation. The respondents were charged with offences under the Fisheries Act and the Waste Management Act. They subsequently brought a motion to quash the warrants, alleging that s. 487(1) of the Criminal Code, which provides for the issuance of search warrants pertaining to “evidence with respect to the commission of an offence”, had been exceeded. The chambers judge ruled that the documents seized pertaining to the issue of due diligence were not documents with respect to the commission of this particular offence and quashed both warrants. The Court of Appeal, in a majority decision, upheld the ruling.

Held: The appeal should be allowed.

Statutory provisions should be read to give the words their most obvious ordinary meaning which accords with the context and purpose of the enactment in which they occur. On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. Anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant. It can be assumed that Parliament chose not to limit s. 487(1) to evidence establishing an element of the Crown’s prima facie case. To conclude otherwise would effectively delete the phrase “with respect to” from the section. While s. 487(1) is broad enough to authorize the search in question even absent this phrase, the inclusion of these words plainly supports the validity of these warrants. Although s. 487(1) is part of the Criminal Code, and may occasion significant invasions of privacy, the public interest requires prompt and thorough investigation of potential offences. It is with respect to that interest that all relevant information and evidence should be located and preserved as soon as possible. This interpretation accords with the purposes underlying the Criminal Code and the demands of a fair and expeditious administration of justice. Furthermore, denying the Crown the ability to gather evidence in anticipation of a defence would have serious consequences on the functioning of our justice system. While the broad powers contained in s. 487(1) do not authorize investigative fishing expeditions, nor do they diminish the proper privacy interests of individuals or corporations, in this case the specific terms of the warrant were not at issue, as the respondents challenged only the underlying authority to grant warrants for the purpose of investigating the presence of negligence. Both a plain reading of the relevant section and consideration of the role and obligations of state investigators support the conclusion that s. 487(1) authorized the granting of the warrants in question.

Cases Cited

Referred to: Re Domtar Inc. (1995), 1995 CanLII 1583 (BC SC), 18 C.E.L.R. (N.S.) 106; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29; R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686; Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241; Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170; R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860; Thomson Newspapers Ltd. v. Canada (Director of Research and Investigation, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C-46, s. 487(1)(b) [am. c. 27 (1st Supp.), s. 68; am. 1994, c. 44, s. 36].

Fisheries Act, R.S.C., 1985, c. F-14, ss. 36(3), 40(2).

Interpretation Act, R.S.C., 1985, c. I-21, s. 12.

Waste Management Act, S.B.C. 1982, c. 41, ss. 3(1.1) [ad. 1985, c. 52, s. 96], 34(3).

Authors Cited

Ontario. Commission on Proceedings Involving Guy Paul Morin. Report, vol. 1. Toronto: Ontario Ministry of the Attorney General, 1998.

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 1997 CanLII 4095 (BC CA), 145 D.L.R. (4th) 427, 90 B.C.A.C. 126, 147 W.A.C. 126, 114 C.C.C. (3d) 537, [1997] B.C.J. No. 724 (QL), affirming a decision of the British Columbia Supreme Court (1996), 1996 CanLII 8540 (BC SC), 138 D.L.R. (4th) 104, 108 C.C.C. (3d) 497, [1996] B.C.J. No. 1482 (QL), quashing certain search warrants. Appeal allowed.

S. David Frankel, Q.C., and Kenneth Yule, for the appellant.

Gary A. Letcher, Jonathan S. McLean and Eric B. Miller, for the respondents.

Michal Fairburn, for the intervener.

The judgment of the Court was delivered by

Major J.

[1] Major J. -- This appeal raises the question of whether search warrants issued under s. 487(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46, authorize investigators to search for and seize evidence of negligence in the investigation of strict liability offences. At the conclusion of argument the question was answered in the affirmative and the appeal was allowed with reasons to follow.

I. Facts

[2] On October 13, 1994 a chlor-alkali plant operated by the respondents (collectively referred to as “CanadianOxy”) in North Vancouver, British Columbia discharged a quantity of chlorine into the waters of Burrard Inlet, killing a number of fish. This incident occurred during a three and a half hour power outage at the plant, as a result of one of two B.C. Hydro 60 kv power lines servicing the plant being struck by a tree.

[3] The company reported the discharge to the authorities and an investigation by the Department of Fisheries and Oceans followed. Fishery Officer Robert Tompkins went to the plant that night, spoke with the Plant Chemist, and seized a number of documents. He also seized samples of dead fish recovered in the vicinity of the plant by the Harbour Master’s patrol vessel. He advised the Plant Manager that he had reasonable grounds to believe that an offence had been committed under the Fisheries Act, R.S.C., 1985, c. F-14.

[4] Over a short time Tompkins made three further visits to the plant, formally interviewed the Plant Chemist, was shown the valve which the company had identified as the cause of the discharge and was provided with certain documents. His request to interview additional employees was refused.

[5] Tompkins subsequently made a written request to CanadianOxy’s counsel for additional technical information believed relevant for Environment Canada’s Pollution Abatement Division to assess whether the discharge had been preventable. Only a few of these questions were answered.

[6] On March 16, 1995, five months after the discharge, Tompkins swore an information and obtained a warrant to search the respondents’ plant for a range of documents relating to process records, plant maintenance, employee training, discipline, and general plant operations. In the information, Tompkins described the reasons for seeking this information:

The business records . . . are required to establish and prove that CanadianOxy Chemicals Ltd. . . . operate a chlor‑alkali plant that discharges effluent to the waters of Burrard Inlet near North Vancouver, B.C., that the release of effluent with a chlorine concentration exceeding 10 ppm, which I know would be acutely lethal to fish, occurred on October 13, 1994, and that the company could have taken additional reasonable measures to prevent the release of a deleterious substance into water frequented by fish....

. . . I have reasonable grounds to believe that correspondence had been generated by company personnel in January 1994, and that maintenance was performed in March 1994, and again in October 1994, and that the company conducted their own investigation, prepared reports, and provided information regarding the incident until February 1995. . . .

It is necessary to examine effluent discharge records, effluent water quality sampling and analysis records, mechanical and instrument maintenance records, environmental control records, instrument calibration records and flow rate calculation records covering an extended period of time before and after October 13, 1994. This will . . . permit analysis of the maintenance programs undertaken by CanadianOxy Chemicals Ltd.

It is necessary to examine company personnel records covering the period between January 1, 1994 and February 28, 1995 . . . to determine if any company employees have been disciplined in any manner as a result of this incident. . . .

[7] The warrant was executed on March 17, 1995. In total 139 items were seized pursuant to the warrant, and 73 additional items were seized under the investigators’ understanding of the “plain view” doctrine. Following the search, Tompkins learned by coincidence of an adverse ruling by a British Columbia Provincial Court judge on the validity of a similar seizure in an unrelated case. As a result, he sought legal advice with respect to a number of the items taken.

[8] On April 26, 1995, Tompkins made two applications to a Justice of the Peace, one for an order to return the documents which had been improperly seized under the first warrant, and the second for a new warrant to re-seize 13 of the items returned which were relevant to the investigation. These orders were granted and executed the same day.

[9] On June 15, 1995 the respondents were charged with:

(a) depositing, or permitting the deposit, of a deleterious substance in waters frequented by fish, contrary to ss. 36(3) and 40(2) of the Fisheries Act; and

(b) introducing, or causing or allowing the introduction of waste into the environment, contrary to ss. 3(1.1) and 34(3) of the Waste Management Act, S.B.C. 1982, c. 41 (now R.S.B.C. 1996, c. 482).

[10] The respondents subsequently brought a motion to quash the warrants alleging that s. 487(1) of the Criminal Code had been exceeded. The warrants were broad enough to authorize a search for evidence of negligence which if found would negate a defence of due diligence.

II. Judicial History

A. British Columbia Supreme Court (1996), [1996 CanLII 8540 (BC SC)](https://www.canlii.org/en/bc/bcsc/doc/1996/1996canlii8540/1996canlii8540.html), 138 D.L.R. (4th) 104

[11] Sigurdson J. felt bound by Re Domtar Inc. (1995), 1995 CanLII 1583 (BC SC), 18 C.E.L.R. (N.S.) 106 (B.C.S.C.), which held that a s. 487 warrant could not be used to search for and seize evidence of negligence going to the defence of due diligence. As a result, he ruled that the documents seized pertaining to the issue of due diligence were not documents with respect to the commission of this particular offence and quashed both warrants.

B. British Columbia Court of Appeal (1997), [1997 CanLII 4095 (BC CA)](https://www.canlii.org/en/bc/bcca/doc/1997/1997canlii4095/1997canlii4095.html), 145 D.L.R. (4th) 427

[12] In dismissing the appeal, Goldie J.A. (Carrothers J.A. concurring) held that the appellant had failed to demonstrate on any reasonable construction that s. 487(1)(b) authorizes the issuance of a warrant that includes a search for evidence with respect to due diligence in a regulatory offence. In dissent, Southin J.A. concluded that a warrant can issue upon proper evidence to search for and seize things relating to the question of due diligence.

III. Analysis

[13] At issue is whether search warrants issued pursuant to s. 487(1) of the Criminal Code are limited only to evidence relevant to an element of the offence which is part of the Crown’s prima facie case, or whether such warrants encompass evidence that may relate to potential defences, such as due diligence, which may or may not be raised at the trial. The relevant section of the Code provides:

487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

may at any time issue a warrant under his hand authorizing a person named therein or a peace officer

(d) to search the building, receptacle or place for any such thing and to seize it . . . [Emphasis added.]

[14] Statutory provisions should be read to give the words their most obvious ordinary meaning which accords with the context and purpose of the enactment in which they occur; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at paras. 21-22. It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids. In our opinion there is no such ambiguity in s. 487(1).

A. The Ordinary Meaning of the Words

[15] On a plain reading, the phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.

[16] This reading is supported by Dickson J.’s interpretation of almost identical language in Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 39:

The words “in respect of” are, in my opinion, words of the widest possible scope. They import such meanings as “in relation to”, “with reference to” or “in connection with”. The phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters. [Emphasis added.]

[17] We can assume that Parliament chose not to limit s. 487(1) to evidence establishing an element of the Crown’s prima facie case. To conclude otherwise would effectively delete the phrase “with respect to” from the section. While s. 487(1) is broad enough to authorize the search in question even absent this phrase, the inclusion of these words plainly supports the validity of these warrants.

[18] The respondents urged that s. 487(1) be given a restrictive reading in accordance with the principle that an ambiguous penal statute should be interpreted in a manner most favourable to an accused: see R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, at para. 39. That argument was rejected as, in our opinion, this section is neither ambiguous, nor the type of penal provisions to which the rule should apply. Instead, s. 487 should be given a liberal and purposive interpretation; Interpretation Act, R.S.C., 1985, c. I-21, s. 12.

[19] While s. 487(1) is part of the Criminal Code, and may occasion significant invasions of privacy, the public interest requires prompt and thorough investigation of potential offences. It is with respect to that interest that all relevant information and evidence should be located and preserved as soon as possible. This interpretation accords with the purposes underlying the Criminal Code and the demands of a fair and expeditious administration of justice.

B. Purpose of the Search Warrant Provisions of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[20] A primary, though not exclusive, purpose of the Criminal Code, and penal statutes in general, is to promote a safe, peaceful and honest society, This is achieved by providing guidelines prohibiting unacceptable conduct, and providing for the just prosecution and punishment of those who transgress these norms. The prompt and comprehensive investigation of potential offences is essential to fulfilling that purpose. The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible and informed decision to be made as to whether charges should be laid.

[21] At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conduct criminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the section authorizing their issuance must be interpreted in that light.

[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, 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.

[23] Moreover, extrinsic factors such as the accused’s motive or the failure to exercise due diligence are often relevant to determining whether the event which triggered the investigation in the first place is criminally culpable. Everyone, including accused persons, who lacks the means of obtaining and preserving evidence prior to trial has an interest in seeing that these facts are brought to light. It would be undesirable if a narrow reading of s. 487(1) resulted in either inculpatory or exculpatory evidence being lost because of the investigators’ inability to secure it. See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, per Cory J., at p. 254:

The essential role of the police is to investigate crimes. That role and function can and should continue after they have made a lawful arrest. The continued investigation will benefit society as a whole and not infrequently the arrested person. It is in the interest of the innocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly as possible.

[24] It is important that an investigation unearth as much evidence as possible. It is antithetical to our system of justice to proceed on the basis that the police, and other authorities, should only search for evidence which incriminates their chosen suspect. Such prosecutorial “tunnel vision” would not be appropriate: see The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (1998), per the Honourable F. Kaufman at pp. 479-82.

[25] In Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, Lamer J. (later C.J.C.) stated for the majority that:

Traditionally the Crown Attorney has been described as a “minister of justice” and “ought to regard himself as part of the Court rather than as an advocate”. (Morris Manning, “Abuse of Power by Crown Attorneys”, [1979] L.S.U.C. Lectures 571, at p. 580, quoting Henry Bull, Q.C.) As regards the proper role of the Crown Attorney, perhaps no more often quoted statement is that of Rand J. in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23‑24:

It cannot be over‑emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.

[26] The majority of the British Columbia Court of Appeal found that the word “commission” in s. 487(1) restricted its application to evidence that the accused had done those acts, or allowed those omissions, which constitute the elements of the offence. The criminal justice system is not solely concerned with whether a prima facie case can be made out against an accused, but whether he or she is ultimately guilty. The dissenting reasons of Southin J.A. are persuasive on both the purpose and meaning of s. 487(1). At para. 63 she stated:

. . . I would translate the words in issue to mean “touching upon whether a breach of the law involving a penal sanction has occurred”. Whether or not there can be said to have been such a breach depends upon whether there can be a penal sanction and there can be no sanction without a conviction.

[27] In addition, as pointed out by the intervener Attorney General of Ontario, denying the Crown the ability to gather evidence in anticipation of a defence would have serious consequences on the functioning of our justice system. In order to be fair, the criminal process must “enable the trier of fact to ‘get at the truth and properly and fairly dispose of the case’ while at the same time providing the accused with the opportunity to make a full defence”; R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475, at p. 486. This reciprocal fairness demands that the Crown be able to fairly seek and obtain evidence rebutting the accused’s defences. If the respondents’ submission on the interpretation of s. 487(1) were accepted, a search warrant would never be available for this purpose. This narrow interpretation would frustrate the basic imperative of trial fairness and the search for truth in the criminal process.

C. Privacy Concerns

[28] There is no doubt that search warrants are highly intrusive, and that an investigation bearing on the issue of due diligence could, as Shaw J. pointed out in Re Domtar, supra, at p. 119, “entail a detailed inquiry into the affairs of a corporation over a period of several years”. This Court has endorsed the importance of privacy and the need to constrain search powers within reasonable limits: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at p. 889; Thomson Newspapers Ltd. v. Canada (Director of Research and Investigation, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 520-22; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at pp. 436-37.

29 The broad powers contained in s. 487(1) do not authorize investigative fishing expeditions, nor do they diminish the proper privacy interests of individuals or corporations. This is particularly true with respect to personnel records which may contain a great deal of highly personal information unrelated to the investigation at hand. Judges and magistrates should continue to apply the standards and safeguards which protect privacy from unjustified searches and seizures.

[29] In this case, however, the specific terms of the warrant were not at issue, as the respondents challenged only the underlying authority to grant warrants for the purpose of investigating the presence of negligence. In our opinion both a plain reading of the relevant section and consideration of the role and obligations of state investigators support the conclusion that s. 487(1) authorized the granting of the warrants at issue.

IV. Disposition

[30] The appeal is allowed, without costs, as agreed by counsel.

Appeal allowed.

Solicitor for the appellant: The Attorney General of Canada, Vancouver.

Solicitors for the respondents: Edwards, Kenny & Bray, Vancouver.

Solicitor for the intervener: The Attorney General for Ontario, Toronto.