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ENVIRONMENTAL LIABILITY - Administrative compliance - Obstructing an inspector

Thursday, February 07, 2019 @ 8:36 AM  

Lexis Advance® Quicklaw®
Appeal by the Crown from an Ontario Court of Justice decision overturning a conviction for an offence under the Environmental Protection Act. The respondent acknowledged that he had an open fire burning construction debris on his property, and that he prevented an enforcement official from entering the property to carry out an inspection. The respondent was charged with obstruction of a provincial officer in the performance of his duties. The sole issue at trial was whether the officer had authority to conduct a warrantless inspection of the respondent's property pursuant to s. 156(1)(c) of the Act. The Provincial Offences Court concluded that such authority existed based on the official's reasonable belief and entered a conviction. On appeal to the Ontario Court of Justice, the conviction was quashed, and an acquittal was entered. The judge held that the official's belief contaminants were discharged into the air lacked an adequate foundation. No obstruction occurred, as the official did not have authority to enter the property. The Crown appealed.

HELD: Appeal allowed. Neither court below accurately expressed the test for "reasonable belief" under s. 156(1) of the Environmental Protection Act. The Act was remedial legislation with protective and preventative purposes. Such purposes were achieved by, among other things, establishing limits on permissible discharges of contaminants. A provincial officer's authority to make inspections was central to the protective and regulatory purposes of the Act. The purpose of s. 156(1) of the Act was to authorize activities intended to support an officer's preventative and compliance powers at the less intrusive end of the spectrum. Having regard to the purpose and scheme of the Act, the nature of the harm it sought to prevent, and the need to promptly and efficiently investigate and respond to potential environmental harm, the threshold for establishment of a "reasonable belief" was low, requiring an officer to articulate the assessment of available information after the fact. Under s. 156(1)(c), an officer was permitted to make an inspection where there was a connection between the purpose of the entry and the purpose of the Act, with an objective and reasonable basis for the officer to believe that a contaminant was, has been, or may be discharged into the natural environment. Here, the officer exercised his inspection powers on the basis of a bylaw officer's report of observations of the respondent's property, and a report from a neighbour that waste was brought onto the property, and smoke was generated by an open fire. The information received by the officer prior to entry was sufficient to support a reasonable belief justifying an inspection. The acquittal was set aside and the conviction at first instance was restored.

Ontario (Ministry of the Environment and Climate Change) v. Geil, [2018] O.J. No. 6588, Ontario Court of Appeal, G.R. Strathy C.J.O., D.H. Doherty and L.B. Roberts JJ.A., December 14, 2018. Digest No. TLD-February42019007