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IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Timberwolf Log Trading Ltd. v. British Columbia, 2011 BCSC 142 Date: 20110207 Docket: S103985 Registry: Vancouver In the Matter of the Petition for Relief in the Nature of Certiorari and Aid in the Matter of Search warrants to Search Executed in the Province of British Columbia Between: Timberwolf log Trading ltd. Petitioner And Her Majesty the Queen in the Right of the Province of British Columbia Respondent Before: The Honourable Madam Justice Gropper

Reasons for Judgment
Counsel for the Petitioner: Counsel for the Respondent: Appearing on his own behalf: Place and Date of Hearing: Place and Date of Judgment: P. A. Spencer A. Mizrahi A. H. Dalmyn Don Good, Principle of BC Log Inventory Services Ltd. Vancouver, B.C. December 1 and 2, 2010 Vancouver, B.C. February 7, 2011

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Nature of the Application [1] This is an petition under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

(JRPA), by Timberwolf Log Trading Ltd. (Timberwolf) to quash telewarrants (or "search warrants") issued by a Judicial Justice of the Peace (JJP) of the Provincial Court of British Columbia to Mr. Daniel Smallacombe, an employee with the Compliance and Enforcement Branch of the Ministry of Forests and Range (MOFR). There were four telewarrants granted, three on July 22, 2008 and one on August 22, 2008, against scalers and/or related contractors, Pioneer Scaling and Inventory Management Ltd. (Pioneer Scaling), BC Log Inventory Services Ltd. (BC Log) and James Simon. The telewarrants were not issued against Timberwolf. [2] Timberwolf argues that the JJP had no jurisdiction to issue the telewarrants, on the basis

that Mr. Smallacombe had no authority to obtain telewarrants under the Criminal Code, R.S.C. 1985, c. C-46; Mr. Smallacombe acted outside his legislative authority in obtaining the search warrants; Mr. Smallacombe failed to make reasonable efforts to locate a JJP in person before applying for a telewarrant, or to explain why it was impracticable to appear in person before a JJP; and Mr. Smallacombe failed to make full and frank disclosure in the information to obtain (ITO) the telewarrants. [3] The respondent Province argues that Timberwolf has no standing to bring this

application; Timberwolf has not brought the application within the requisite time limits; and the telewarrants are valid. [4] Timberwolf is not seeking the return of the records that are described in the search

warrant, nor is it asking the Court to consider the admissibility of those records in any other proceeding at this time. Issues [5] The following issues arise in this application: 1. Does Timberwolf have standing to bring this petition? 2. Is this petition brought within the requisite time limits? 3. What is the scope of review? 4. Were the search warrants validly issued? 5. Should the search warrants be quashed? Statutory Framework

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[6]

Madam Justice Wedge considered the relevant statutory framework to this matter in a

related proceeding: Timberwolf Log Trading Ltd. v. British Columbia (Forests and Range), 2010 BCSC 500. Referring to the provisions of the Forest Act, R.S.B.C. 1996, c. 157 (the uAcf'), she provided the following summary:
[8] Timberwolf is a log broker whose business involves the acquisition and sale of harvested logs. Under the Act, the Crown grants Timber Sale Licences which provide the right to harvest timber on specific areas of Crown land. Timber Sale Licences are awarded on bid or tender. Timberwolf purchases timber from several Licencees. [9] The Ministry of Finance and Revenue (UMFOR") opens certain areas of Crown land for timber cutting, releases information to the industry, and invites bids. MFOR has, and makes available, information noted on a timber cruise (or survey) of the standing timber. The timber cruise is conducted by qualified timber cruisers. The timber cruise data is an estimate of the grade, species and volume of timber on the land. [10] Timber cruise data provides the basis for estimating stumpage payable to the Crown when the applicable rates are known and no other reliable information with greater accuracy is available. [11] Stumpage is a royalty set by a bidding process, payable to the Crown when the timber is cut (Act, s. 104(1)). Stumpage rates are determined by bids from qualified operators: harvesting rights are awarded to the successful bidder under a Licence, with stumpage payable at the bid rate. [12] The amount of stumpage payable depends on the volume and quality of the timber, and is calculated in accordance with Part 7 of the Act. The stumpage rate set by the Licence is based on a price of several dollars per cubic meter. There is one rate for good quality coniferous timber, and a much lower rate ($0.25 per cubic meter) for all "X" and "Y" grade timber and "U" grade hemlock and balsam. [13] Stumpage is determined by scaling. Scaling is performed by licensed scalers at authorized sites. Scaling is governed by Part 6 of the Act. The relevant information and measurements for each log are recorded on handheld computer devices used by the scalers, and copied onto other computers that transmit the data into the Ministry of Forests and Range ("MOFR") system known as the Harvest Billing System ("HBS"). The HBS issues invoices to the parties responsible for paying the stumpage fees. [14] Section 97(1) of the Act provides that any person owning the timber, owning or operating the scale site, or performing the scale must ensure that the scale details are recorded in an approved form and kept at the scale site. The scale returns must also be completed and delivered within a prescribed time. Subsection (2) provides that failure to remit scale returns will result in a penalty. [15] Under s. 99, MOFR is entitled to have timber scaled again and a second scale return prepared. If the volume or value of the timber calculated from the second scale return varies by more than a prescribed percentage from the original scale return, the rescale governs for all purposes. [16] The licensee is liable to pay the stumpage (Act, s. 104(1)). In addition, any person who acquires or deals in timber on which stumpage is owing must report the acquisition or dealing, and pay to the Crown all stumpage fees payable in respect of the timber (Act, s.131). [17] Stumpage invoices are calculated at the appropriate licence rates on the basis of the scale data entered into HBS. Stumpage invoices are issued by MOFR to the licensee and are usually copied to the scale site. [18] The scale data is expected to be accurate and current. Electronic records are to

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be printed regularly and backed up electronically by any person required to keep the data so that the records can be produced to authenticate the information submitted to the government. [19] Scale data and other reports, returns and records are subject to audit by the Forest Revenue Audit Program ("FRAP") in Victoria. FRAP is a working unit within the Ministry of Finance acting on the direction and authority of the Commissioner under Part 11.1 of the Act. It is associated with the Tax Audit programs of the Ministry of Finance. [20] A FRAP audit involves a review of all necessary records of all parties dealing or trading in timber and other evidence to determine if the grade, species and volume have been determined and reported properly for the purposes of calculating the stumpage due to the Crown.

[22] The Commissioner (or a delegate) is authorized to perform audits, and to assess fees and penalties, after determining that stumpage has been underreported and underpaid.

Background [7] The search warrants authorized Mr. Smallacombe to search the business premises of

Pioneer Scaling, BC Log, Menzies Bay Log Sort #3 and the business premises located within the dwelling house of James Simon to seize the following:
Scale data, log inventory reports and administrative files in the form of paper documents located in the premises, and electronic information located in the computer equipment, hard drives, removable data media, smart cards, including any programs, software, manuals or other documentation associated with the said equipment, related to the management and processing of the scale data for ... Timberwolf Log Trading Limited including electronic mail transmissions. (the "records")

[8]

Pioneer Scaling, BC Log and James Simon were contractors and agents of Timberwolf

performing the scaling duties and maintaining the records. [9] The records which were seized were audited by a delegate of the Commissioner in the

fall of 2009, who advised Timberwolf that the audit revealed several instances of inaccurate reporting of scaled logs. The results of the audit formed the basis of the four notices of assessment FRAP issued in April 2010 under Part 11.1 of the Act, reassessing Timberwolf for the period between April 1,2006 and December 31,2008 in the amount of $3,449,039.39. [10] There are several ongoing proceedings in relation to the records seized: 1. The charges of fraud were referred to Crown counsel for charge approval in 2009. Crown counsel declined to approve charges under the Crown Counsel Act, R.S.B.C. 1996, c. 87, in September 2010.

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2.

The Compliance and Enforcement Branch has continued to investigate alleged contraventions of the Act relating to scale records and returns and stumpage. The government may proceed under s. 71 of the Forest and Range Practices Act, S.B.C. 2002, c. 69 (FRPA), "Administrative Penalties". Such a proceeding may lead to a hearing for determination of contravention and a penalty by the designated decision maker. The determination is subject to appeal to the Forest Appeal Commission and further appeals.

3.

Madam Justice Wedge dismissed Timberwolfs

petition to prohibit the

Commissioner under the Act for making assessment under part 11.1 of the Act in April 2010. Timberwolf appealed that decision and it was heard by the Court of Appeal on January 12, 2011. The decision is under reserve. 4. The notices of assessment under part 11.1 of the Act were issued in April 2010. Timberwolf has appealed the assessment to the relevant Minister under part 11.1 of the Act. The Minister's decision, if adverse to the parties assessed, may be subject of an appeal to the British Columbia Supreme Court. Standing [11] The respondent argues that Timberwolf does not have standing to bring this petition.

While it may be affected adversely by the use of the records in evidence in a proceeding against Timberwolf, a party affected by the use of items seized from other parties does not have standing: R. v. Model Power (a division of Master Miniatures Ltd) (1979), 21 C.R. (3d) 195 at 196 (Ont. H.C.); affd (1980), 21 C.R. (3d) 195 at 202 (Ont. C.A.). [12] The respondent asserts that Timberwolf cannot claim a breach of its right to to be secure

against unreasonable search or seizure under S. 8 of the Charter, as it protects reasonable expectations of privacy: R. v. Gomboc, 2010 SCC 55. Timberwolf cannot claim that it had a reasonable expectation of privacy in respect of the scale records, which are required to be kept for all the timber harvested [13] Timberwolf argues that.it does not need to invoke s. 8 of the Charter. It is not asserting Its assertion here is that the Criminal Code was

that the search and seizure was unreasonable.

not lawfully invoked and the JJP did not have the jurisdiction to issue the search warrants. They are therefore unlawful and should be set aside. [14] Alternatively, Timberwolf argues that the records which were seized are Timberwolfs,

and it is affected by the seizure. The information records which were seized were prepared and maintained for Timberwolf by its agents: Pioneer Scaling, BC Log and Mr. Simon.

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Decision [15] The Ontario Court of Appeal considered the legal interest of an applicant to quash a

search warrant in R. v. Pugliese (1992), 8 O.R. (3d) 259. After reviewing Model Power and its requirement that the accused establish a "possessory or proprietary interest" in the articles. seized, the Court found at 264 that Model Power was "not of much assistance, given this Court's lack of commentary in the appeal and the fact that it preceded the Canadian Charter of Rights and Freedoms ... " [16] The Court continues:
[T]here is an important distinction between an application to quash a judicial process such as a search warrant and an accused's objection at his criminal trial to the admissibility of evidence obtained pursuant to such process: [citations omitted] When dealing with an application to quash a search warrant authorized by the Code to prevent a search. and seizure or to obtain the return of property seized, it is appropriate for the court to confine its concern to applicants who have some identifiable legal interest in the premises searched or in the articles seized. (at 265) [emphasis added]

[17]

The respondent's argument prefers form over substance.

The records which the search

warrants authorized Mr. Smallacombe to search and seize were records for Timberwolf Log Trading Limited, as specified. Further, I am satisfied that the records were kept by Pioneer Scaling, BC Log and James Simon as agents and/or contractors of Timberwolf and were kept at the business premises of those entities as well as at Menzies Bay Log Sort #3. Finally, the records which were seized formed the basis of the reassessments issued by the commissioner. It is artificial to suggest that Timberwolf does not have standing to challenge the search warrants, despite their being issued to parties other than Timberwolf, when they were clearly used for the purpose of investigating Timberwolfs [18] underreporting or underpaying stumpage.

In all the circumstances I am satisfied that Timberwolf has standing to bring this petition.

Timeliness [19] The respondent asserts that the court may not entertain or grant certiorari under Part

XXVI of the Criminal Code in respect of a search warrant issued under s. 487 of the Code, where the application for certiorari has been made more than six months after the issuance of the search warrant. The time for making all such applications is fixed at six months by Rule 4 (2) of the Criminal Rules of the Supreme Court of British Columbia, SI/97-140. [20] The respondent concedes that there is no criminal proceeding before the court.

Nevertheless, it argues that there is an assessment appeal before the Commissioner and, if Timberwolf chooses, the results can be reviewed by the court. If this petition proceeds, the respondent says, it will affect and pre-empt the proceedings before the Commissioner. http://www.courts.gov.bc.ca/jdb-txtlSCI11101/2011BCSC0142.htm 511612012

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[21]

Timberwolf asserts that this is an application under the JRPA. As there is no criminal

proceeding before the court, the Criminal Rules do not apply. The only remedy remaining for Timberwolf is under the JRPA to which the Supreme Court Rules apply. There is no limitation in bringing this petition under the Supreme Court Rules or under the provisions of the JRPA. Decision [22] While Timberwolfs assertion that petition ought not to be entertained under the Criminal

Code has some logical attraction, it does not appear to accord with the authorities. This was explained in R. v. Canadian Broadcasting Corp., 2006 NLCA 21, 207 C.C.C. (3d) 309 where the court stated at para. 10:
10 The parties are agreed that the Provincial Court judge was exercising jurisdiction granted by section 487 of the Criminal Code when the search warrant was issued. Technically, counsel for the CBC is correct when she asserts that the Criminal Code makes no "specific" provision for procedure to review such a decision. It does, however, make specific provision for "extraordinary remedies". Section 774 provides: 774. This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition. Where a third party in a criminal proceeding seeks to quash a procedure being employed, the recognized approach is to apply to the superior court of criminal jurisdiction for certiorari. In R. v. Jobin, [1995] 2 S.C.R. 78 Sopinka and Iacobucci JJ wrote: [28] For third parties to a criminal proceeding, the type of recourse to seek is dictated by the court issuing the order. A provincial court order should be challenged by an application to a superior court for the extraordinary remedy of certiorari. This decision can then be appealed pursuant to s. 784(1) of the Criminal Code ... Clearly, that recognition by the Supreme Court, taken together with section 774 of the Criminal Code, can leave no doubt that review by a superior court, at the behest of a third party, of a provincial court order issuing a search warrant, remains a criminal proceeding, notwithstanding that rules of court ordinarily employed where such remedies are used in civil matters may be engaged.

[23]

Thus, although the review of the search warrants remains a criminal proceeding, the

Supreme Court Rules apply. Timberwolf is not subject to any limitation in bringing this petition. [24] However, if the Criminal Rules apply, they provide that a failure to comply with them is an

"irregularity and does not render a proceeding or a step a nullity" (Rule 1(8», and the court can dispense with compliance with a Rule at any time (Rule 1(9». Rule 1(10) provides:
The court may, only where and as necessary in the interests of justice, extend or shorten any period of time provided for in Rules 1 to 5 or in an order of the court, notwithstanding that an application for extension or an order granting an extension is made after the period of time has expired.

[25]

In all the circumstances, I find that the non-compliance with the time limits in the Criminal

Rules does not render this petition a nullity, and I dispense with compliance with the time limits.

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Although there was not a formal application to extend the period for proceeding with this petition, I exercise my discretion to hear this matter despite its non-compliance with the time limits prescribed. The Crown has not approved any charges against Timberwolf, and there is no criminal proceeding. The petitioner has an arguable position that that search warrant was beyond the jurisdiction of the JJP. The challenge to a search warrant is often raised in the trial of a criminal charge, whether or not six months has passed from its issuance. The petitioner has no such opportunity; it is in a position where an application under the JRPA is its only option to attack on the validity of the search warrant. While the validity of the search warrant may affect the matter before the Commissioner, the petitioner is not applying to have the documents seized pursuant to the search warrant destroyed; it is only seeking a declaration that the search warrant is invalid and therefore must be quashed. warrants. [26] In R. v. Sanchez (1994), 20 O.R. (3d) 468, Hill J. of the Ontario Court (General Division)
18. In respect of the Code warrant. .. I have determined that review by certiorari is warranted having regard to the following factors: 1. The applicants are not advancing, as their exclusive objective, a finding that the seized materials are inadmissible in the outstanding proceedings. 2. Consequential relief of a return of the things as described in the warrant, and seized pursuant thereto, is possible in the sense that the items are not unlawful per se to possess. 3. The trial of the outstanding charges is not imminent. 4. There is an important declaratory entitlement where certiorari operates to quash a search warrant. ..

In my view, it is in the interests of

justice that the petitioner have a right to seek the court's review of the impugned search

described when a review by certiorari is appropriate:

[27]

Those factors exist here. I am satisfied that despite non-compliance with the time limits

in the Criminal Rules, this is an appropriate circumstance where the court should entertain a challenge to the validity of the search warrant. Validity of the Search warrants [28] The Petitioner argues that there are four reasons to find that the telewarrants should not

have been issued. If it is correct in anyone of those, the telewarrants are invalid. Nevertheless, I will address each of those reasons. Did Mr. Smallacombe have the authority to obtain telewarrants? [29] Section 487(1) of the Criminal 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

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(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (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, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without search warrant, or (c.1) any offence-related property,

may at any time issue a search warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the search warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

[30]

Section 487.1 provides:
Telewarrants 487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a search warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter. Information submitted by telephone (2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the search warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.

Contents of information (4) An information submitted by telephone or other means of telecommunication include shall

(a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; (b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure; (c) a statement of the peace officer's grounds for believing that items liable to seizure in respect of the offence alleged wi" be found in the place or premises to be searched; and (d) a statement as to any prior application for a search warrant under this section or

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any other search warrant, in respect of the same matter, of which the peace officer has knowledge.

[31]

The petitioner asserts that because Mr. Smallacombe is not a peace officer, he is not

authorized to obtain telewarrants. [32] The respondent concedes that Mr. Smallacombe is not a peace officer. The respondent Mr. Smallacombe refers to the officers involved in the

argues that in Appendix B of the ITO, Mr. Smallacombe explains his grounds for belief that an indictable offence has been committed. investigation. At para. 8(a) of Appendix B to the ITO, Mr. Smallacombe states:

David Steele (STEELE): STEELE is [sic] currently occupies the position of senior investigator, with a special investigation unit, in the Coast Forest Region, with special provincial constable status. STEELE has held his position for fifteen years. STEELE also has thirty five years of scaling experience in the Province of British Columbia.

[33]

The respondent says that as Mr. Steele was involved in the investigation, and he is a

peace officer, the issuance of the telewarrants is valid, despite Mr. Smallacome applying for the telewarrants providing the ITO. [34] officer. Decision [35] Section 487.1 (1) of the Code is clear in requiring that only peace officers have the ability Alternatively, the respondent argues that s. 487 of the Code does not place any

restrictions on who can apply for a search warrant, although it should be issued to a peace

to obtain a search warrant by telephone. A public officer is entitled to obtain a search warrant under s. 481(1). If David Steele is a peace officer, he should have been the individual who applied for the search warrant by telephone and provided the ITO. Mr. Smallacombe does not have the authority to obtain a search warrant by telephone. [36] Statutory authority is to be construed carefully and narrowly where the power of a person

to interfere with the liberty or privacy of others is at stake. As the court stated in R. v. Semeniuk, 2007 BCCA 399 at para. 20, referring to the trial judgment:
20 Madam Justice Smith considered the same submission made to us and held:

[48] The authorities do not readily reveal a set of overarching principles. However, they show that when the authority of a person to do a particular act is questioned, the issue falls to be determined on the scope of the statutory authority and the facts of the case. Because what is at stake is often, as it is here, the power of a person to interfere with the liberty or privacy of others, statutory authority is read carefully, indeed, somewhat narrowly. State power to act as a peace officer should be found only where that is clearly the intention of the legislature.

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[37]

Based upon the provisions of s. 487.1 (1) and taking a narrow view of state power, the

telewarrants ought not to have been issued by the JJP, as Mr. Smallacombe is not a peace officer and therefore did not have the authority to seek a search warrant by telephone in accordance with s. 487.1(1) of the Code. Was Mr. Smallacombe acting outside of his legislative authority in investigating offence of "fraud over $5,000"? [38] an

In the ITO, Mr. Smallacombe indicates that he is investigating an offence of "fraud over

$5,000" under s. 380(1)(a) of the Code. [39] The petitioner asserts that Mr. Smallacombe was acting outside of the authority granted

to him to investigate regulatory matters under the Act and the FRPA. He does not have the authority to conduct investigations into Criminal Code offences or offences under other federal statutes. Neither the Act nor the FRPA contain a provision that permits a forest officer to investigate fraud under the Criminal Code. [40] The respondent asserts that as a forest officer, Mr. Smallacombe has the authority to

investigate all forest matters and certain Criminal Code matters. Forest Officers are the "first line of investigation" in relation to matters such as arson, fraud and stumpage issues. The authority to investigate is part of Mr. Smallacombe's duties. Decision [41] The Act contains two provisions relating to the searches of premises: s. 137 in part 11

permits a forest officer to enter on land; s. 142.2 in part 11.1 permits a forest revenue official (i.e. the Commissioner) to enter on land. Section 142.2 allows the Commissioner to apply for a search warrant under ss. 142.2(3) and 142.2(4) without notice to conduct an inspection of a dwelling. Section 137 does not provide a forest officer with the same authority. [42] Section 64 of the FRPA permits an official to apply for a search warrant under s. 21, or a

telewarrant under s. 22 of the Offence Act, R.S.B.C. 1996, c. 338. The Offence Act does not permit an official to investigate offences under the Criminal Code, only access to obtain search warrants to investigate offences under provincial legislation. telewarrant under the Offence Act. [43] Section 65 of the FRPA instructs a forest officer that he or she may seek the assistance Only a peace officer may obtain a

of a peace officer to carry out a search under s. 64. [44] In R. v. Beaman, [1963] S.C.R. 445, Mr. Justice Ritchie determined that the authority of a
... In my view, the provisions of s. 18 of The Game Act not only purport to give but do

game warden did not extend to the authority to act in criminal matters generally, at page 449:

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give to every "game warden" the powers of a "constable" and therefore of a "peace officer" within the meaning of ss. 2(30)(c) and 110 of the Criminal Code. I agree that these powers are limited to provincial laws and are conferred solely for the purpose of The Game Act but this does not alter the fact that any person who wilfully obstructs a "game warden" in the execution of his duties under that Act is committing the indictable offence of wilfully obstructing a "peace officer in the execution of his duties", contrary to s. 110 of the Criminal Code. [emphasis added]

[45]

I have already noted that Mr. Smallacome is not a constable or a peace officer, and thus

his powers are more limited than those of the game warden considered in Beaman. [46] Subsection 487.01 (1)(a) of the Code provides that a search warrant may be issued if "the

judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed ..." [47] Sanchez makes it clear that a search warrant cannot be issued on "mere suspicion,

conjecture, hypothesis or 'fishing expeditions' fall[ing] short of the minimally acceptable standard from both a common law and constitutional perspective" (at para. 29). It appears that not only did Mr. Smallacombe lack the authority to investigate an offence under the Criminal Code, or a federal act of Parliament, his allegations were made to obtain documents which he could not obtain under the provisions of the FRPA. The records seized pursuant to the search warrant may be the basis of an alleged regulatory breach, not a Criminal Code offence. Did Mr. Smallacombe fail to make reasonable efforts to locate a JJP in person before applying for a telewarrants, or to explain why it was impracticable to appear in person before a JJP? [48] Section 487.1(1) requires that a peace officer applying for a telewarrant must include a

statement in the ITO that in the circumstances it is impracticable for the peace officer to appear personally before a JJP (s. 487.1 (4)). [49] The petitioner asserts that Mr. Smallacombe made no effort to explain why it was

impracticable for him to appear personally before a JJP. It asserts that Mr. Smallacombe made no effort to determine whether a JJP was' sitting at a reasonably proximate courthouse or whether JJPs were ever present in the respective communities. to accept the application in Port McNeil, B.C." [50] The respondent refers to the statement in the ITO where Mr. Smallacombe states at He merely asserted that it was impracticable to appear before a JJP because "a Judicial Justice of the Peace was not available

para. 39: "I have contacted the Provincial Court in the town of Port Hardy and have been informed that there is no Judicial Justice of the Peace available to receive this information."

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Decision [51] While the absence of any effort to confirm the availability of a JJP can be fatal to the

validity of a telewarrant, I am satisfied that Mr. Smallacombe's ITO makes it clear that there was no JJP present in the respective community to address his application: R. v. Ling, 2009 BCCA

70. Did Mr. Smallacombe fail to make full and frank disclosure in the information to obtain (ITO) the telewarrants?
[52] The petitioner asserts that Mr. Smallacombe misled the JJP by failing to disclose in the

ITO that he had had discussions with Mr. Jeffrey, a representative of Timberwolf, regarding issues with scaling which provided reasonable expectations regarding scale grade discrepancies and that he offered Mr. Jeffrey immunity from prosecution in exchange for information to further a fraud investigation. Mr. Smallacombe did not advise the JJP that MFOR is not permitted under the Forest Act (s. 136) or the FRPA (s. 59) to remove scaling records from a scaling site and that scalers are independent contractors and that their remuneration is not based on the grade assigned timber and thus they have no incentive to inaccurately report. [53] The petitioner argues that Mr. Smallacombe omitted essential details regarding timber

scaling practices which were fundamental to permit the JJP to make proper inferences and draw independent conclusions about whether a case of fraud could be established in the circumstances. final scale. [54] The petitioner also says that Mr. Smallacombe improperly restated statements which he Specifically he failed to explain that scaling contains subjective elements which affect the timber grade assigned by a scaler, or explain the difference between a cruise and a

received from a witness, Hazel Saorrano, regarding directions from a Timberwolf. representative that the log grades be changed. [55] The respondent argues that while there are factual issues made in respect of the

allegation of material nondisclosure, and the actions of Mr. Jeffrey that were not explicitly described in the ITO, they are not material to the JJP's decision to issue the search warrants. Mr. Jeffrey did not indicate any defence to the charges or provide any reason to believe that true and complete scale records had been produced for inspection or suggest that Mr. Jeffrey or Timberwolf were prepared to produce the records. Decision [56] The requirement that an applicant for a search warrant make full and frank disclosure

was addressed in Lemare Lake Logging Ltd. v. British Columbia (Minister of Forests and Range), 2009 BCSC 909, where Mr. Justice Grauer stated at para. 38: http://www.courts.gov.bc.ca/jdb-txtlSCI11/01/2011BCSC0142.htm 5116/2012

2011 BCSC 142 TimberwolfLog

Trading Ltd. v. British Columbia

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38 The Courts have consistently made it clear that a party involved in an ex parte process such as applying for a writ of search and seizure has a duty to make full and frank disclosure of material facts. See, for instance, R. v. Araujo, [2000] 2 S.C.R. 992 and R. v. Ling, 2009 BCCA 70. The scaling and merchandising process that had been explained to Mr. Smallacombe could in my view hardly have been more material to the issue of whether there was a reasonable probability that the seized timber would constitute evidence in support of the allegation of fraud against XV. That duty of disclosure was accordingly breached in this case.

[57]

I consider that the information that Mr. Smallacombe did not disclose was of fundamental

importance to the whole question of whether there was underreporting or underpaying stumpage in relation to an allegation of fraud. Discussions between Mr. Smallacombe and Mr. Jeffrey, and details concerning the scaling practice are, in my view, important for the JJP to consider in order to make proper inferences about whether there was a reasonable probability that the criminal offence of fraud had been committed. Summary [58] I find that the telewarrants are invalid on the basis that Mr. Smallacombe was not

authorized to apply for a telewarrant; that he was acting outside of his legislative authority in investigating an allegation of fraud under the Criminal Code; and that he failed to provide full and frank disclosure to the JJP. Conclusion [59] I conclude that an order of certiorari is available and justified in this case. I declare that

the four telewarrants issued in July and August of 2008 is quashed. [60] Timberwolf is entitled to costs of this petition. "Gropper J."

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