Wednesday, August 19, 2020

Farm Fields and Reasonable Expectations of Privacy


Section 8 of the Canadian Charter of Rights and Freedoms guarantees the right to be secure from unreasonable search and seizure by government authorities, including the police.  The protection applies to people, which includes corporations (as legal persons), not to places.  However, the location in which a search takes place can be important in determining whether the government action was lawful or not.  A search has been defined by the Courts as any state activity that interferes with a “reasonable expectation of privacy”.   An unlawful search is one that unreasonably interferes with a person’s reasonable expectation of privacy. 

A search of a person’s body raises obvious privacy concerns (“personal privacy”) and attracts the highest level of protection under Section 8.  Searches of geographic locations connected to a person may also raise privacy concerns (“territorial privacy” or “spatial privacy”), but not all locations will attract the same level of protection.  Individuals have a high (and most often reasonable) expectation of privacy in places like the home, meaning that the standard of reasonableness required of a search there will be high.  The expectation of privacy in a publicly-accessible commercial space will be comparatively much lower, meaning that the standard of reasonableness required of a search of that location will be comparatively lower than for a search of a private home.

Does a farmer or a farm corporation have any reasonable expectation of privacy on open farmland?  Can a police search of a private field violate a person’s Section 8 Charter right by unreasonably interfering with an expectation of privacy?  The Court of Appeal for Ontario recently heard the challenge of convictions related to production and possession of marijuana by a vegetable farmer, the Appellant, who argued that a police search of the farmland he rented infringed Section 8 of the Charter.  The Trial Judge agreed that Section 8 had been infringed, but ruled that the infringement did not warrant exclusion of evidence subsequently obtained on the farm.  That evidence led to the convictions.

The Appellant leased approximately 12 acres out of a 330-acre property based on a verbal agreement.  A neighbour made a complaint to the police about marijuana being grown on the property and then accompanied a drug investigator to the site: “Both men briefly and unintentionally trespassed on the leased lands, although no marijuana was seen.”  At a later time, an off-duty police officer was hunting on the property with the landowner’s permission and saw some marijuana plants.  He passed that information onto drug enforcement.  Another officer then attended at the property and saw 14 rows of marijuana plants.  As with the visit of the original drug investigator, this officer too unknowingly trespassed onto the leased lands in making his observation.

Eventually the police obtained search warrants, carried out a search of the property, and discovered a large number of marijuana plants in the field, a processing operation in a barn, and other related evidence of drug offences.  At trial, the Appellant applied under Section 8 of the Charter to exclude the evidence obtained under warrant because, in part, the warrants were based on information obtained through a trespass onto the leased land.  The Trial Judge agreed that the police entries onto the leased land prior to the issuance of the warrants did breach the Appellant’s Charter right to be free from unreasonable search and seizure, but concluded the breach was in the “middle range of gravity” and not sufficiently serious to require the exclusion of the evidence later gathered.  This finding was the focus of the appeal, and the Court of Appeal agreed with the Trial Judge and upheld the convictions.

The Court of Appeal also noted that the Trial Judge’s assessment of the Appellant’s privacy interest in the rented field as not measuring “high on the privacy scale” was well-supported by the factual record.  The Appellant had a privacy interest that was more than “trifling” – he had made real and extensive use of the property over a number of years to farm vegetables, and the leased land was hidden from public view due to its precise location – but the fact that the leased area was accessible to persons visiting the overall farm property (the non-leased portion) and the fact that there were no signs or barriers erected to alert a visitor to the Appellant’s assertion of a privacy interest did not lend themselves to a high level of privacy protection from a police search.  Under different circumstances, it would appear, a person’s privacy interest in farmland might warrant a higher level of protection.

It is important to note that not all government searches involve the police and criminal investigations.  Regulatory inspections carried out by government agencies such as the Canada Revenue Agency or the Ontario Ministry of the Environment are also “searches” that must be conducted reasonably and in compliance with Section 8 of the Charter.  While the bar for reasonableness of a regulatory inspection may be set lower than that for a criminal investigation, the inspection may still unreasonably interfere with a person’s reasonable expectation of privacy, including on farm properties.  Whether an inspection has breached the Section 8 Charter right of an individual or a corporation will depend on the circumstances of each particular case.

Read the decision at: Ontario Court of Appeal.

Monday, August 17, 2020

Normal Farm Practices Protection Board goes to the dogs


In 1987, the Ontario Government introduced Bill 83, An Act respecting the Protection of Farm Practices, which led to the enactment of Ontario’s first “right to farm” legislation, the Farm Practices Protection Act, 1988.  The Minister of Agriculture at the time, the Honourable Jack Riddell, explained to the Legislature:

Ontario farmers have been concerned for some years that normal farming practices may increasingly result in complaints and court actions under the common law of nuisance. Under the act, a Farm Practices Protection Board will be established. Individuals who complain about odours, noise and dust from farm practices may ask the board to investigate. The board will hold hearings on odour, noise or dust complaints referred to it. The board will have the power to dismiss complaints about a normal farming practice or to issue an order to rectify the problem if it is not normal. […]

The act will deal with current and future nuisance incidents arising from existing conditions. The long-term solution is a strong agricultural planning policy to avoid incompatible and competing uses in agricultural areas.

A decade later, perceived shortcomings in the original legislation were addressed in a new Farming and Food Production Protection Act, 1998 (“FFPPA”), which expanded nuisance liability protection to a number of modern farming activities, added to the list of disturbances covered by the protection, and addressed conflicts between agriculture and restrictive municipal by-laws.  This legislation remains in effect today.

The FFPPA protects “normal farm practices”, which are defined as practices either “conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances” or which “[make] use of innovative technology in a manner consistent with proper advanced farm management practices”.  Importantly when it comes to livestock operations, a practice that is inconsistent with the regulations made under the Nutrient Management Act, 2002 will not be considered a normal farm practice.

The first layer of protection for agriculture created by the FFPPA is the nuisance liability protection introduced in the original Farm Practices Protection Act, 1988.  At Common Law (“judge-made” law as opposed to statutory law passed by the Legislature), a person can be liable for use of his or her land in a way that substantially and unreasonably interferes with a neighbour’s enjoyment of his or her own property.  The FFPPA creates an exception by stating that a farmer will not be liable in nuisance for “a disturbance resulting from an agricultural operation carried on as a normal farm practice”.  The agricultural operation must be carried on “in the expectation of gain or reward” to be protected.  The disturbances covered by the FFPPA are odour, dust, flies, light, smoke, noise, and vibration.

The second layer of protection for agriculture in the FFPPA is the resolution of conflicts between normal farm practices and municipal by-laws in favour of normal farm practices.  According to the legislation, no municipal by-law can apply “to restrict a normal farm practice that is carried on as part of an agricultural operation.” 

The FFPPA creates the Normal Farm Practices Protection Board, which is a tribunal with the power “to inquire into and resolve a dispute respecting an agricultural operation and to determine what constitutes a normal farm practice” and “to make the necessary inquiries and orders to ensure compliance with its decisions.”  A person directly affected by a disturbance from an agricultural operation can apply to the Board for a determination “as to whether the disturbance results from a normal farm practice.”  Farmers directly affected by a municipal by-law or “persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it” can apply to the Board for a determination “as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.”

At issue in one of the most recent cases decided by the Board was a complaint about a surprising source of disturbance – a barking dog acquired by a small farm operation to guard poultry from predators, namely coyotes.  The Applicant lived next door to the farm and alleged that he could hear the dog barking every night and sometimes during the day, and that the barking kept him and his family up during the night and terrified his young son.  The Applicant asked the Board to determine whether the alleged disturbance resulted from a normal farm practice.

The Board dismissed the application without having to determine whether having the guard dog on the farm was a normal farm practice entitled to the liability protection under the FFPPA.  Based on the evidence it heard, and taking into account all of the circumstances, the Board found that the Applicant failed to meet the threshold test – establishing that he was directly affected by the alleged disturbance.  To pass that test, the Applicant would have to have shown that the dog barking caused interference that was “substantial and would not be tolerated by the ordinary occupier in their location, an objective test.”

Read the decision at: Normal Farm Practices Protection Board.

Monday, June 22, 2020

Glyphosate Battles Continue


Following the lead of their American counterparts, Canadian class-action lawyers have been busy commencing lawsuits in Canada against Monsanto and Bayer over allegations that glyphosate (the active ingredient in the herbicide Roundup) has caused cancer in individuals exposed to the chemical.  A quick Google search brings up references to at least seven different actions commenced across Canada in 2019 by various representative plaintiffs on behalf of proposed classes of people exposed to glyphosate.  Damages claimed are in the hundreds of millions of dollars, and include “exemplary, punitive, and aggravated damages” intended to address the Defendants’ alleged callous and reckless disregard for the health and safety of users of glyphosate.

On another front, objections have been raised against the continued registration of glyphosate for use in Canada.  In April, 2017, the Pest Management Regulatory Agency (“PMRA”) of Health Canada released a Re-evaluation Decision by which it granted continued registration of products containing glyphosate for sale and use in Canada.  Health Canada evaluated available scientific information and found that:

… products containing glyphosate do not present risks of concern to human health or the environment when used according to the revised label directions.  As a requirement for the continued registration of glyphosate uses, new risk reduction measures are required for the end-use products registered in Canada.  No additional data are being requested at this time.

Health Canada summarized its overall findings from the re-examination of glyphosate as follows:

  • Glyphosate is not genotoxic and is unlikely to pose a human cancer risk.
  • Dietary (food and drinking water) exposure associated with the use of glyphosate is not expected to pose a risk of concern to human health.
  • Occupational and residential risks associated with the use of glyphosate are not of concern, provided that updated label instructions are followed
  • The environmental assessment concluded that spray buffer zones are necessary to mitigate potential risks to non-target species (for example, vegetation near treated areas, aquatic invertebrates and fish) from spray drift.
  • When used according to revised label directions, glyphosate products are not expected to pose risks of concern to the environment.
  • All registered glyphosate uses have value for weed control in agriculture and non-agricultural land management.

A number of Notices of Objection were filed pursuant to the federal Pest Control Products Act requesting that a review panel of scientists be established to review Health Canada’s decision to continue glyphosate’s registration.  The PMRA of Health Canada decided not to establish a review panel on the basis that the “objections raised did not create doubt or concern regarding the scientific basis for the 2017 re-evaluation decision for glyphosate.” 

In January, 2020, the Federal Court of Canada heard an application for judicial review of the PMRA’s decision not to establish a review panel.  The Applicants were Safe Food Matters, a non-profit corporation dedicated to the safety of food production technologies, and its President.  They requested an order “quashing” or voiding the decision and directing the PMRA to establish a review panel.  The Applicants’ Notice of Objection raised concerns about using glyphosate as a pre-harvest dessicant for crops, rather than as a weed killer, and focused on harm to humans rather than harm to the environment.  The PMRA found that the objection did not raise “scientifically founded doubt” about the validity of Health Canada’s Re-evaluation Decision on glyphosate, and that expert scientists would not be able to assist in addressing the topics raised in the objection.

In a decision dated February 13, 2020, Madam Justice Simpson dismissed the application for judicial review on the basis that the Applicants failed to show in their Notice of Objection that “there exists scientifically founded doubt” about the validity of Health Canada’s Re-evaluation Decision on glyphosate.  She applied the standard of review of “reasonableness”, meaning that the PMRA’s decision would stand as long as it was both logical and rational, and fell within relevant factual and legal constraints (such as rules imposed by the law governing the PMRA, principles of statutory interpretation, past practices and decisions, etc.).  Justice Simpson’s view was that the decision would only be unreasonable if the Applicants’ Notice of Objection showed a “well founded scientific doubt about a conclusion” in Health Canada’s Re-evaluation Decision, and that “scientifically founded doubt … must be demonstrated by at least one controlled peer reviewed study published in a reputable journal that contradicts or raises a reasonable doubt about the Evaluations’ conclusions.”  She concluded the Applicants failed to show that the PMRA’s decision was unreasonable based upon those criteria.

Following the release of the Federal Court decision, Safe Food Matters announced on its website that it would review its next steps with counsel and its board, which could include a possible appeal, a further judicial review application, and pushing for changes to the law.

Read the Federal Court decision at:  M. v. Canada (Attorney General).

Wednesday, June 17, 2020

Trespass to Farm Property


In 1980, the Ontario Legislature enacted the Trespass to Property Act in order to remedy a number of perceived shortcomings in the existing Petty Trespass Act (first enacted in 1834 as the Act to provide for the Summary Punishment of Petty Trespasses and other offences), including the inadequacy of protections for farm landowners.  The Ministry of the Attorney General noted at the time that the existing law did “not deter trespass onto land under cultivation even though significant farm losses are caused by trespassers.”  The Petty Trespass Act required that before a person could be prosecuted for entry on agricultural land, the person must have had notice that trespass is prohibited, or the land had to be enclosed or posted with signs.  The Ministry further noted that modern agricultural techniques to maximize crop yields had resulted in the removal of existing fencing from fields and orchards, and that maintaining signage on large open areas was impractical.

The Trespass to Property Act prohibits entry onto premises “that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on lands used primarily for agricultural purposes.”  Entry is also prohibited on premises that “is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises.”  A key element in both prohibitions is that no notice or posted sign is required to prohibit entry.  Entry is prohibited by virtue of the agricultural use of or the enclosure of the land.

The Ontario Court of Justice recently heard an appeal from a conviction under the Trespass to Property Act related to a farm property.  The appellant and others had been hunting coyotes with the use of hounds and snowmobiles when one of the hunters shot and wounded a coyote.  The appellant followed the wounded coyote’s tracks across an old split rail fence with barbed wire (in poor condition in places) onto a woodlot area in the neighbouring 96-acre farm property beyond the fence, and there shot the animal.

The owner of that neighbouring property happened to be walking trails on his farm at the same time, and heard the gunshots.  He confronted the appellant and told him to leave the property.  The landowner viewed the entry as a trespass, and he was also concerned for his safety given that a firearm had been discharged on his property.  Although the appellant had permission from ninety percent of the landowners in the area to hunt, he did not have the permission of the owner of the land where he shot the coyote.  The appellant was charged with trespass under the Act, and convicted following a trial.

On appeal, the issue was whether the appellant’s entry onto to the property beyond the fence was a trespass in the absence of a notice or posted sign.  At trial, the Justice of the Peace found that no notice or sign was required because the land was bounded by a split rail fence and barbed wire, which indicated the owner’s intention to keep persons off the premises, and because the land was “in part a garden, in part a field, or other land that is under cultivation.”  The appellate judge upheld the conviction.  He found that, though the Justice of the Peace didn’t specify it, the land was a woodlot on land used primarily for agricultural purposes and so no notice of sign was required.  The judge also agreed that the land was enclosed in a manner indicating an intention to keep persons off the property.

In making that finding, the appellate judge said the following in response to the appellant’s contention that the dilapidated split rail and wire fence was not an effective enclosure and that there was no evidence of an intention to keep people out:

… this argument is extremely narrow and places an unreasonable burden on landowners. It would require them to rebuild fences upon their purchase of property and to testify at trial as to their mindset in keeping and maintaining fences. In effect it shifts the burden, in this strict liability offence, to the landowner to establish and then re-establish again and again their intent. It also means that persons who wish to access property would effectively have to interview the landowner as to their mindset and the history of the fence. That does not make sense. And it certainly is not in keeping with the purpose of legislation, which is to allow property owners in agricultural areas to be free from unwanted encroachments onto their property without the burden of onerous notification and fencing requirements.

On December 2, 2019, the Ontario Government’s Bill 156, the “Security from Trespass and Protecting Food Safety Act, 2019”, passed first reading in the Legislature.  That proposed legislation would apply to all farms and animal processing facilities at which farm animals are kept, and would prohibit entry to “animal protection zones” – any enclosure for farm animals or other area marked as an “animal protection zone” – without the prior consent of the owner or occupier of the farm.  The proposed legislation specifies that the existing Trespass to Property Act would no longer apply to “animal protection zones”. 

In debate on Bill 156, a government member explained that the new legislation differs from the Trespass to Property Act in the following ways, providing enhanced protection to the livestock industry:

·         It considers animal welfare and biosecurity as a key component;
·         It covers the transportation of farm animals;
·         It provides that consent to enter an “animal protection zone” cannot be implied;
·         It allows for consent to be voided if obtained under false pretences;
·         It protects the owner or occupier from civil liability if a trespasser is harmed;
·         It provides stronger recovery mechanisms for harms caused by a trespasser; and,
·         It requires trespassers to identify themselves.

Existing provisions under the Trespass to Property Act would continue to apply to all property other than an “animal protection zone”.