2018 Pull

2018 Pull

Thursday, February 21, 2019

Warrantless Powers of Inspection under the Environmental Protection Act

AS PREVIOUSLY PUBLISHED IN
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.

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