In a decision released December 14, 2018, the Ontario Court of Appeal clarified the legal test that authorizes a warrantless inspection under s. 156(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”).
Facts of the Case
In the case, Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, a municipal by-law officer responded to an allegation that a neighbour was burning construction debris that he hauled onto his property.
The by-law officer did not observe debris being hauled to the site, but did observe smoke. He did not detect any unusual colour or odour associated with the smoke. He nonetheless contacted the Ministry of Environment (the “MOE”). The EPA prohibits the discharge of contaminants into the natural environment in levels that exceed that prescribed by regulations (s. 6).
Two MOE officers, the by-law officer and two police officers responded to the property. The property owner did not allow the MOE officers to inspect the fire. He was subsequently charged with obstructing the MOE officer in the performance of his duties, contrary to section 185(1) of the EPA.
Issue
The question for the court was whether a third-party report about a fire (the MOE officer did not see smoke or fire before entering the property) was sufficient grounds for an MOE officer to enter private property without a warrant to conduct an inspection.
The MOE officer’s authority to conduct a warrantless inspection is pursuant to section 156(1)(c) of the EPA, which reads:
For the administration of this Act or the regulations, a provincial officer may, without a warrant or court order, at any reasonable time and with any reasonable assistance, make inspections, including,…
(c) entering any place in or from which the provincial officer reasonably believes a contaminant is being, has been or may be discharged into the natural environment… [Emphasis added.]
The issue was, therefore, whether the third-party report was sufficient to give rise to a “reasonable belief” on the part of the MOE officer that a contaminant was being or had been discharged into the environment. A “contaminant” is defined as “any solid, liquid, gas… resulting directly or indirectly from human activities that causes or may cause an adverse effect” (s. 1(1)).
Decisions Below
The trial court held that a third-party report could give rise to a “reasonable belief” if it was “compelling”, “credible”, and “corroborated”. Essentially, the court adopted the analysis from R. v Debot, [1989] 2 S.C.R. 1140, where the issue was whether a “tip” from an informant could justify a warrantless police search of a person. The trial court found that this test was met, and the property owner was convicted.
The Provincial Offences Appeal Court disagreed. The appeal court held that a provincial officer’s reliance on a report from a third party could not amount to a “reasonable belief”, and the provincial officers did not have the authority to enter the property.
Decision of the Court of Appeal
The Court of Appeal reversed the Provincial Offences Appeal Court, and reinstated the conviction, but it also found that the trial court “set the bar too high” by requiring the information to be “compelling”, “credible” and “corroborated”. Reasoning that, while this test may be appropriate for the criminal law context, it is inconsistent with the “preventative and protective” purpose of regulatory inspections under the EPA (para. 87-88).
The Court of Appeal held that the legal test to determine whether an MOE Officer has a “reasonable belief” sufficient to permit a warrantless inspection under s. 156(1) of the EPA is, whether there is:
- a nexus between the purpose of the entry and the protective, preventative, or remedial purpose of the EPA, and
- an objective and reasonable basis for the provincial officer to believe that a contaminant was, has been, or may be discharged into the natural environment (para. 78).
Acknowledging that this is a “low threshold”, the Court of Appeal reasoned that it was justified because, given the harm caused by release of contaminants, “MOE inspectors must be able to act swiftly and effectively” (para. 83).
Implications for Privacy Rights
Curiously, beyond the simple assertion that the provision provides “an appropriate balance between the public interest in ensuring regulatory compliance and individual privacy rights” (para. 84), the decision offers almost no discussion of privacy rights. It is also vague about exactly what “regulated activity” the defendant was engaged in.
While the hauling of construction debris for disposal (as alleged by the neighbour) is an activity regulated by Part V of the EPA, the Court of Appeal does not evaluate whether the MOE officer had a “reasonable belief” that the defendant was hauling construction debris (in fact, the defendant told the MOE officer he was burning wood from a barn he demolished on his own property (para. 12)).
Rather, the Court appears to treat an open wood fire as the “regulated activity” that justifies an inspection. An open fire may require a fire permit in many municipalities, but a typical outdoor wood fire is not truly “regulated” pursuant to the EPA. For example, periodic outdoor wood fires do not require an environmental compliance approval (“ECA”) under the EPA. (For more info see the Ontario Government web page, Outdoor Fires and the Law.)
This distinction between regulated and unregulated activities is important when evaluating the protections to afford privacy rights. This is because low thresholds for warrantless inspections are typically justified on the basis that a person engaged in a regulated activity does not have a reasonable expectation of privacy from inspection (see Thompson Newspapers Ltd. v. Canada (1990), 54 C.C.C. (3d) 417 (S.C.C.)). On the facts as provided in the decision, it is not clear that the defendant was actually engaged in a true “regulated activity”, since it seems a step too far to suggest that the EPA turns every private, outdoor wood fire into a regulated activity.