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.

Landowners found guilty of violating excessive fortification of land by-law through excessive surveillance equipment

In October, 2015, the Ontario Court of Justice released its decision in a case involving the fortification of property.  Many municipalities outlaw the excessive fortifying of property as it is often associated with gang or organized crime activity and may unduly intrude on the privacy of neighbours.  A husband and wife in Oshawa were charged with having applied "excessive protective elements to land", in this case video surveillance (8 cameras in front of the house, one to the south side, one on the fence at the northwest portion of the back yard and one affixed to a rear yard television antenna tower).  Various signs were also posted around the property, including one that read: "This private property & fence is enforced by video surveillance.  This is not a public thruway or thoroughfare.  Boundary line is 6" left of fence.  Resident has no permission or authority whatsoever to violate this boundary.  Persons entering this private sideyard on behalf of resident could be considered part of resident's continuance actions.  Also could be considered and served court subpoena as witnesses should action be decided or taken."

After several requests for entry to the house by a by-law officer were denied, the officer applied for and obtained a search warrant.  Inside the house, the officer observed live images from each of the 11 cameras, and determined that was possible for the antenna camera to be rotated 360 degrees and to provide a view well beyond the property of the defendants.  The officer determined that the video surveillance went well beyond "reasonable protection" that would not offend the by-law.

The defendants challenged the by-law charge first on the basis that the officer's search of their home was illegal.  Justice of the Peace Coopersmith disagreed - there was a valid search warrant.  She also disagreed with the defendants' arguments about the non-applicability of the by-law to private property:

Mr. L is prone to taking things out of context or simply does not understand the law or legal principles to which he refers.  Consequently, he draws his own unfounded conclusions.  For example, he failed to contextually understand the concept of a municipality as possessing powers of a “natural person” in exercising its authority.  He used parts of the Ontario Land Owners Association Report to ground his submission that “Fortification By-laws can only be implemented on “public properties” and not on private properties.”  I do not accept Mr. L’s submissions that fortification by-laws do not apply to private property, only to public lands. The definition of “Land” in Section 1.1(p) of Oshawa’s Fortification By-law 103-2005 does not distinguish between public and private lands.  Section 2.1 expressed the application of the By-law to all land within the City, unless it is expressly exempted by legislation.  Therefore, I find the L’s property at 1988 Walreg Drive in Oshawa is captured by the By-law’s definition of “Land”.

On the issue of what constitutes "reasonable protection", which is not prohibited by the by-law, Justice of the Peace Coopersmith said:

The term “reasonable protection” is not defined in the City’s By-law 103-2005.  Hence, applying a contextualized and plain meaning to these words, I am of the opinion that the words refer to adequate fortification that will afford the protection necessary to keep people and their property from theft or other criminal activity.  I accept that over the years the defendants experienced a break and enter into their dwelling and other incidents of vandalism to their property.  I do not find the meaning of “reasonable protection” to include protection from incidents or harassment of trivial importance, such as annoyed neighbours making faces and waving their middle fingers at the intrusive surveillance cameras aimed down the side of their home.  In a residential area, for example, the public interest in reasonable enjoyment of and privacy in one’s property is not served if excessive protective elements, such as video surveillance cameras capable of monitoring neighbours’ activities in their own homes and on their own yards, are present. 

The City’s Fortification By-Law 103-2005 serves to balance such public interest within residential neighbourhoods with the private interests of residents to protect their own property from theft or other criminal activity.  The By-Law suffices to allow people to protect themselves and their property from theft or other criminal activities, but it also limits the use of protective elements, such as video surveillance systems, to no more than is required for such protection.  In defining “Excessive Protective Elements” to capture visual surveillance equipment, including video cameras … capable of permitting either stationary or scanned viewing … beyond the perimeter of the Land”, Oshawa’s By-Law strikes a reasonable balance between private and public interests by affording its residents the right to monitor for theft or other criminal activity on their own respective properties, while serving the public interest of privacy and peaceful enjoyment by residents on properties in relatively close proximity to such video surveillance equipment.

The defendants were convicted of having violated the by-law.

Read the decision at: Oshawa (City) By-Law.

Privacy Commissioner deals with concerns about disclosure of contamination data

The Ontario Information and Privacy Commissioner has recently issued a decision upholding an earlier decision by the Ministry of the Environment (MOE) to release partial records related to an ongoing contamination situation in Cambridge, Ontario.  According to the decision, trichloroethylene (TCE) leaked from a facility into neighbouring properties, contaminated local groundwater and may have posed a health hazard due to the movement of contaminant vapours from the groundwater into the basements of nearby homes.

The MOE received a request for access to information about the contamination, including all test results and reports on remediation in the possession of the MOE.  A decision was made to disclose some of the documents and information requested, but without any homeowner names except where a release had been provided.  At least one homeowner challenged the decision, as did the company responsible for the contamination and clean-up. 

The Commissioner declined to prevent the disclosure of property information on the basis that it was personal information.  The argument was made that property identification information could be used to obtain the names of property owners and was, therefore, personal information.  The Commissioner disagreed:

I also wanted to address the appellant and affected person’s arguments that the individual homeowners would be identifiable from a disclosure of their addresses or other location information using publicly available resources. The fact that the names of individual owners could be determined by a search in the registry office or elsewhere does not convert the municipal address from information about a property to personal information. In Order PO-1847, former Adjudicator Katherine Laird noted that, in the context of a discussion about correspondence concerning possible land use, “…where records are about a property, and not about an identifiable individual, the records may be disclosed, with appropriate severances, notwithstanding the possibility that the owners of the property may be identifiable through searches in land registration records and/or municipal assessment rolls.”

The Commissioner also rejected the argument that disclosure of the information would result in undue financial loss for the homeowners involved:

I accept that the stigma of environmental contamination can result in the lowering of property values and may affect the ability of property owners to sell their properties in the free market. However, in this case, I find that the appellant has not provided me with detailed and convincing evidence that the disclosure of these records could reasonably result in undue loss to the homeowners. Firstly, as the ministry notes, the media has already reported of the contamination in the community. The records contain these newspaper reports. Secondly, from my review of the records, I find that there has already been some public disclosure of the test results to the homeowners and businesses in the community. And finally, I agree with the ministry’s representations that the information in the records including test results and remediation reports, provide a clearer picture of those properties that have been properly remediated to ministry standards. I am not persuaded that disclosure of these records would result in undue loss to the homeowners in the community.

Read the full decision at: Ontario (Environment) (Re).