Farm Fields and Reasonable Expectations of Privacy

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

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.

Normal Farm Practices Protection Board goes to the dogs

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

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.