THE RURAL VOICE:
Section
156(1) of Ontario’s Environmental
Protection Act (“EPA”) authorizes a provincial officer, without a warrant
or court order, to inspect any location in which or from which a contaminant
“is being, has been or may be discharged in to the natural environment.” In order to exercise this power of entry and
inspection, however, the provincial officer must first have a “reasonable
belief” about the discharge or risk of discharge. The Court of Appeal for Ontario recently
interpreted this reasonable belief standard in deciding an appeal related to a
charge of hindering or obstructing a provincial officer in the performance of
his duties.
On
November 22, 2013, a municipal by-law officer was advised by a resident about
construction debris being hauled onto a neighbouring property and burned. The by-law officer attended at the resident’s
property, and from there observed a large fire on the neighbouring
property. Although the officer was not
able to identify with certainty what material was being burned, he observed
that the material included wood. He did
not detect any unusual colour or smell.
The
by-law officer informed the Ministry of the Environment (“MOE”) of his
observations. About four hours later,
two MOE inspection officers attended at the neighbouring property, together
with the municipal by-law officer and two Regional Police officers. At the trial of the hindering and obstructing
charge in the Provincial Offences Court, one of the MOE officers testified
that, based on information provided to him by the by-law officer, he had three
concerns: 1) waste was being transported to and disposed of on the neighbouring
property (which is an activity regulated under the EPA); 2) waste was being
burned; and, 3) compounds generated by the burning of the waste would be emitted
as smoke into the environment.
Importantly,
the MOE officer did not personally see smoke or fire until after he had entered
the neighbouring property. Once on the
property, the MOE officer observed smoke from a “fairly substantial fire” of
broken wood. The owner of the property
was present, and the MOE officer advised the owner that he wanted to inspect
the fire to determine whether or not waste was being burned, and whether the
burning constituted a contravention of the EPA.
The property owner told the MOE officer that open burning was occurring
on his property. In response to a
question from the by-law officer, the owner said that he was burning debris
from a demolished barn on the property.
But the owner denied the officers access to inspect the fire, and asked
the officers to leave. The officers
left.
The
property owner was charged under the EPA with hindering or obstructing the MOE
officer in the performance of his duties for having denied access to inspect
the fire. The essential facts of the
case were uncontested at trial; the property owner admitted that there had been
an open fire burning on his property and that he had prevented a provincial
officer from entering the property to inspect the fire. A Justice of the Peace convicted the property
owner, but the conviction was overturned on an initial appeal to a Judge of the
Ontario Court of Justice. The Crown
appealed the acquittal to the Court of Appeal, which allowed the Crown’s appeal
and restored the conviction. The issue
on the Crown’s appeal was whether the MOE officer had the pre-existing reasonable
belief necessary to permit him to enter and inspect the property without a
warrant or court order.
What
does “reasonable belief” mean in the context of the warrantless power of entry and
inspection in the EPA? Chief Justice
Strathy observed that, “a belief is a state of mind. It is an acceptance of the truth of
something, without necessarily having personal knowledge of its truth.” A “reasonable belief” is “one that a
reasonable person would hold, based on the existence of some objective evidence
to support the belief.”
In
the EPA-context, the provincial officer must have a subjective belief in the
discharge or potential discharge of a contaminant, and that subjective belief
must have an objective basis at the time it is formed: “While the provincial
officer may be required to explain his or her belief after the fact, as is the
situation in this case, the reasonableness of the belief is based on the
provincial officer’s assessment of the information available at the time the
power of inspection is invoked.” In the
case under appeal, Chief Justice Strathy found that, on the day in question and
at the moment the MOE officer had requested access to the owner’s property to
inspect the fire, the MOE officer had the reasonable belief to authorize a
warrantless entry and inspection. The
information received by the MOE officer prior to his attempt to enter the
property – reports that waste was being brought onto the property and smoke was
being generated from an open fire – was sufficient to support a reasonable
belief.
Property owners faced with a request by a provincial
officer for access to permit an inspection under the EPA should consider
seeking legal advice where possible.
Permitting access may ultimately lead to regulatory liability, but
denying access may give rise to additional liability.
Read the decision at: Ontario (Environment and Climate Change) v. G.
