Environment Canada Search Warrant Stands

Last week the Supreme Court of British Columbia dismissed an application by Haida Salmon Restoration Corporation (“Haida Salmon”) to set aside a search warrant relating to ten counts of ocean disposal under the Canadian Environmental Protection Act (“CEPA”).

Environment Canada obtained the search warrant believing that Haida Salmon and related parties had loaded substances containing iron onto the “Ocean Pearl” to be disposed of into the Pacific Ocean without the appropriate permits.

Science tells us that ‘iron fertilization’ of the ocean may stimulate plankton growth or algal blooms and that, in turn, this may be an ideal way to store carbon. However, the wider side-effects of iron fertilization are not currently known.

Haida Salmon argued, unsuccessfully, that the search warrant was not based upon any violation of Canadian law or, alternatively, that the definition of “disposal” in the CEPA is vague and, therefore, unenforceable and contrary to the Canadian Charter of Rights and Freedoms. Haida Salmon abandoned this latter argument during the course of its application.

In finding in Environment Canada’s favour, Mr Justice Voith determined that:

“[i]t is not for the issuing justice, nor for the reviewing judge… …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”.

Essentially, in allowing the search warrant to stand, the Court recognized that it is not necessary for Environment Canada to have a perfect case, just that the Information to Obtain set out at least some basic elements of an offence.

For a full transcript of the decision, see: Haida Salmon Restoration Corporation v Environment Canada, et al [2014] BSCS 151.

By James Early.