R. v. Fitzpatrick [1995] 4 S.C.R. 154: Self-incrimination -- Fishermen required by statute to provide hail reports and fishing logs: Whether admission in evidence of hail report and fishing logs infringes fisherman's right against self-incrimination

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL

Constitutional law -- Charter of Rights -- Fundamental justice -- Self-incrimination -- Fishermen required by statute to provide hail reports and fishing logs indicating estimated poundage of catch by species and date, time and location of catch -- Fisherman charged with overfishing -- Whether admission in evidence of hail report and fishing logs infringes fisherman's right against self-incrimination under s. 7 of Canadian Charter of Rights and Freedoms.

The appellant was the captain of a vessel engaged in a licensed and regulated commercial groundfish fishery in British Columbia. He was charged under the Fisheries Act with three counts of catching and retaining fish in excess of the fixed quota, contrary to s. 10(1) of the British Columbia Fishery (General) Regulations. At trial, the Crown sought to admit into evidence the fishing logs and hail report made by the appellant, which indicate the estimated poundage of the catch by species, and the date, time and location of catch during each trip. All fishermen are required under s. 61 of the Fisheries Act to provide these documents and failure to do so constitutes an offence under the Act. The trial judge excluded the hail report and fishing logs on the grounds that they were self-incriminatory and that their admission would violate the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms. The Crown called no further evidence and an acquittal was entered. A majority of the Court of Appeal allowed the Crown's appeal, set aside the acquittal, and ordered a new trial.

Held: The appeal should be dismissed.

The protection against self-incrimination afforded by s. 7 of the Charter is not absolute. In determining the ambit of this protection, it is important in a particular case to consider the context in which the claim for its application arises. In the present regulatory context, the principle against self-incrimination does not prevent the Crown from relying on fishing logs and a hail report at the appellant's trial for overfishing simply because these documents are statutorily required. It is not contrary to fundamental justice for an individual to be convicted of a regulatory offence on the basis of a record or return that he is required to submit as one of the terms and conditions of his participation in the regulatory sphere.

Individuals like the appellant who are compelled to furnish hail reports and fishing logs are not in an adversarial or even inquisitorial relationship with the state at the time they provide the information. The essential purpose of the self-reporting obligation under s. 61 of the Act is to provide fisheries officials with up-to-date information necessary for the effective regulation of the fishery. The information is compiled quite apart from any investigation into wrongdoing. More importantly, the "coercion" exercised by the state here is muted, for it arose only after the appellant had made a conscious choice to participate in a regulated area, with its attendant obligations. No one is compelled to participate in the groundfish fishery. In accepting his licence, the appellant is presumed to know, and to have accepted, the terms and conditions associated with it, which include the completion of hail reports and fishing logs, and the prosecution of those who overfish. Just because the information in the returns may later be used in an adversarial proceeding, when the state seeks to enforce the restrictions necessary to accomplish its regulatory objectives, does not mean that the state is guilty of coercing the individual to incriminate himself.

Further, neither of the two rationales behind the principle against self-incrimination -- to protect against unreliable confessions and to protect against the abuse of power by the state -- is threatened by allowing the Crown to use hail reports and fishing logs in the prosecution of those who overfish. Even assuming that a true return under s. 61 of the Act can be equated to a confession, allowing the use of these returns at trial would not increase the likelihood of their being falsified. As well, there is little danger of abusive state conduct in this instance.

Hail reports and fishing logs are required from all commercial fishers and assist in the routine administration of the Fisheries Act and should be seen to constitute the "ordinary" records of those licensed to participate in the groundfish fishery. The fact that these records are statutorily required, and would not exist but for s. 61 of the Act, does not turn them into compelled testimony of the kind that is taken during an investigation into wrongdoing. The protection against self-incrimination afforded by s. 7 of the Charter should not be understood to elevate all records produced under statutory compulsion to the status of compelled testimony at a criminal or investigative hearing. Little expectation of privacy can attach to the hail reports and fishing logs, which are produced precisely to be read and relied upon by state officials. The use of the information contained in these records is not an affront to individual dignity since they divulge nothing about the personality of the individual who has created them. There is also nothing stressful or invasive about responding to a statutory requirement to make hail reports and fishing logs -- a requirement designed to benefit not only those who comply with it, but also society at large.

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