Nova Scotia Court of Appeal
Citation: R. v. Hicks, 2013 NSCA 89
Date: 20130722
Docket: CAC 409943
Registry: Halifax
Between:
Her Majesty the Queen
Appellant
v.
Garth Thomas Hicks
Respondent
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Judges: |
Saunders, Farrar and Bryson, JJ.A. |
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Appeal Heard: |
June 5, 2013, in Halifax, Nova Scotia |
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Held: |
Leave to appeal granted; appeal allowed, per reasons for judgment of Saunders, J.A.; Farrar and Bryson, JJ.A. concurring. |
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Counsel: |
Kenneth W.F. Fiske, Q.C., for the appellant Douglas Shatford, Q.C. and Jeanne Sumbu (Articled Clerk), for the respondent |
Reasons for judgment:
[1] In acquitting Mr. Hicks on a charge of obstructing a provincial inspector from entering and searching his premises, the trial judge asked himself the question whether:
The castles of Cumberland County remain sacroscant against the powers of the Soverign .... [and whether] .... Sheriffs continue to require proper authorization to require the lowering of the drawbridge .... [such that] .... the Lords and Ladies of the Dominion can rest easy.
[2] In affirming the acquittal the Summary Conviction Appeal Court judge concluded that the man’s front yard was also his castle and that if the inspector wished to traverse the moat and look inside the barrel to see what Mr. Hicks had been burning, she needed a warrant to cross, once the owner refused to lower his drawbridge.
[3] I prefer to frame the question by asking whether the inspector’s actions in this case were authorized by legislation intended to strike a proper balance between protecting the environment for the benefit of the community, while respecting the right of individuals to privacy in their homes. Seen through that lens I have concluded that the judges in the courts below erred in their interpretation and application of the law. I would grant leave and allow the appeal.
Background
[4] The facts are not in dispute. On May 23, 2011, a complaint was called in to the Truro office of the Nova Scotia Department of Environment, alleging that material was being burned in a barrel on Athol Road, in Springhill. The information was forwarded to the Amherst office where Inspector Tanya MacKenzie was assigned to the complaint.
[5] A few days later, after follow-up with the person who had lodged the complaint, Inspector MacKenzie drove out to the property. She was in uniform and wearing her identification badge when she arrived. She believed she had the authority to inspect the property by virtue of s. 119 of the Environment Act, S.N.S. 1994-95, c. 1 (the “Act”).
[6] Mr. Hicks was outside in his yard. Ms. MacKenzie identified herself and asked the respondent for his full name and date of birth. Mr. Hicks did not answer. Inspector MacKenzie explained why she was there and told the respondent that she wanted to inspect his property because of the complaint. The inspector observed what she thought was a burn barrel in the yard. Mr. Hicks became confrontational, called her a liar, and asked her to leave the property. Inspector MacKenzie was alone and sensing that the situation had escalated, she left.
[7] Mr. Hicks was charged with hindering or obstructing an inspector contrary to s. 158(d) of the Act. The case was heard by Judge Paul B. Scovil at the Provincial Court in Amherst on April 12, 2012. The trial judge found as a fact that Mr. Hicks had hindered and obstructed Inspector MacKenzie and that his purpose was clearly to frustrate her inspection of his premises. However, Judge Scovil ruled that Ms. MacKenzie had no authority to inspect the property without first obtaining either the landowner’s permission, or (in lieu thereof) a warrant or order authorizing her entry on to the premises pursuant to s. 121 of the Act. As a result, the trial judge found Mr. Hicks not guilty of the offence as charged.
[8] The Crown appealed that verdict to the Summary Conviction Appeal Court. The appeal was heard by Justice J.E. Scanlan of the Nova Scotia Supreme Court on November 8, 2012. After hearing submissions from counsel, Scanlan, J. dismissed the appeal.
[9] Pursuant to s. 839(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 and s. 7(1) of the Summary Proceedings Act, R.S.N.S. 1989, c. 450, the Attorney General of Nova Scotia applies for leave to appeal to this Court and, if leave is granted, appeals from the decision of the SCAC.
Issues
[10] By its Notice of Appeal dated December 5, 2012, the appellant lists the following grounds:
1. The summary conviction appeal court Judge erred in law in failing to consider the provisions of s. 119(1A) of the Environment Act (N.S.) respecting the inspector’s lawful authority to enter on the property of the respondent.
2. The summary conviction appeal court Judge erred in law in ruling a “private dwelling place” within the meaning of the Environment Act (N.S.) included land attached to and associated with a dwelling house.
3. The summary conviction appeal court Judge erred in law in ruling that an inspector had no authority to enter upon the property of the respondent without a warrant in the absence of the consent of the respondent.
4. The summary conviction appeal court Judge erred in law in his interpretation and application of the provisions of ss. 119 and 120 of the Environment Act (N.S.).
5. Such other grounds of appeal as may appear from a review of the record under appeal.
[11] I would distil the grounds of appeal to a single question:
Did the SCAC err in law by interpreting the phrase “private dwelling place” within the meaning of the Environment Act (N.S.) as including the yard surrounding the respondent’s home such that in the face of the owner’s refusal to grant permission, the inspector had no authority to enter the premises without first obtaining a warrant?
Standard of Review
[12] The Crown’s appeal to this Court from the decision of the SCAC is taken pursuant to s. 839 of the Criminal Code. It requires our leave and is limited to questions of law. It is not a second appeal against the judgment at trial, but rather an appeal against the decision of the SCAC. The error of law required to ground jurisdiction in this Court is that of the SCAC judge and not the trial judge. See for example, R. v. Fitzpatrick, 2006 NSCA 65; and R. v. Ord, 2012 NSCA 115, leave to appeal ref’d [2012] SCCA 537.
[13] The question for us then is whether Justice Scanlan erred in law by affirming Mr. Hicks’ acquittal based on his interpretation of the legislation which is the focus of our analysis in this case.
[14] The issues on appeal invite our determination of the proper meaning to be given to certain words found in the Act. The interpretation of legislation is a question of law. The standard of review is one of correctness. Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Housen v. Nikolaisen, 2002 SCC 33; Dunsmuir v. New Brunswick, 2008 SCC 9; Keizer v. Slauenwhite, 2012 NSCA 20; Mor-Town Developments Ltd. v. MacDonald, 2012 NSCA 35.
Analysis
[15] The first question to be answered is whether we ought to grant leave in this particular case? I have no hesitation in saying we should. This appeal concerns the interpretation of an important regulatory statute which affects the authority of inspectors to carry out their duties according to law. The issues raised are significant and have serious consequences for the general administration of justice in the Province.
[16] As I said at the outset, the impugned legislation in this case invites us to decide whether the Legislature, in writing its laws, has managed to achieve a proper balance between the interests of the state in the effective enforcement of its environmental protection legislation on the one hand, and the right of individuals to privacy on the other.
[17] Considering the importance of these issues to the province and its citizens, leave ought to be granted. I turn now to a consideration of the merits.
[18] Unfortunately, neither the judge who presided at trial, nor the one who sat on appeal as the SCAC mentioned or applied the well-recognized canons of statutory interpretation. Respectfully, this omission led to error in both courts: at trial an incomplete analysis produced an incorrect result; and on appeal the error which led to the respondent’s acquittal was not corrected.
[19] The current methodology whenever legislation is to be interpreted was thoroughly explained by Chief Justice MacDonald in Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44. I will repeat, adopt and apply what the Chief Justice said in his reasons in that case to the legislative provisions that invite our interpretation here:
36 The Supreme Court of Canada had endorsed the "modern approach" to statutory interpretation as expounded by Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87:
... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447.
37 It is suggested by some that this approach is no more than an amalgam of the three classic rules of interpretation: the Mischief Rule dealing with the object of the enactment; the Literal Rule dealing with grammatical and ordinary meaning of the words used; and, the Golden Rule which superimposes context. See Stéphane Beaulac & Pierre-Andre Côté in Driedger's "Modern Principle" at the Supreme Court of Canada: Interpretation, Justification, Legitimation (2006), 40 Thémis 131-72 at p. 142.
38 In any event, as Professor Ruth Sullivan explains in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) beginning at p. 1, this modern approach involves an analysis of: (a) the statute's textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established legal norms:
The chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory interpretation. The first dimension emphasized is textual meaning. ...
A second dimension endorsed by the modern principle is legislative intent. All texts, indeed all utterances, are made for a reason. Authors want to communicate their thoughts and they may further want their readers to adopt different views or adjust their conduct as a result of the communication. In the case of legislation, the law-maker wants to communicate the law that it intended to enact because that law, as set out in the provisions of a statute or regulation, is the means chosen by the law-maker to achieve a set of desired goals. Law-abiding readers (including those who administer or enforce the legislation and those who resolve disputes) try to identify the intended goals of the legislation and the means devised to achieve those goals, so that they can act accordingly. This aspect of interpretation is captured in Driedger's reference to the scheme and object of the Act and the intention of Parliament.
A third dimension of interpretation referred to in the modern principle is compliance with established legal norms. These norms are part of the "entire context" in which the words of an Act must be read. ...
39 That said, applying these dimensions is often easier said than done. Professor Sullivan elaborates at p. 3:
The modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme and objects of the Act and the intention of the legislature. In an easy case, textual meaning, legislative intent and relevant norms all support a single interpretation. In hard cases, however, these dimensions are vague, obscure or point in different directions. In the hardest cases, the textual meaning seems plain, but cogent evidence of legislative intent (actual or presumed) makes the plain meaning unacceptable. If the modern principle has a weakness, it is its failure to acknowledge and address the dilemma created by hard cases. [Emphasis by author]
40 Thus in considering whether s. 36 applies to the facts of this case, Professor Sullivan would invite us to answer three questions:
Under the modern principle, an interpreter who wants to determine whether a provision applies to particular facts must address the following questions:
* what is the meaning of the legislative text?
* what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these?
* what are the consequences of adopting a proposed interpretation? Are they consistent with the norms that the legislature is presumed to respect?
41 Finally, in developing our answers to these three questions, Professor Sullivan invites us to apply the various "rules" of statutory interpretation:
In answering these questions, interpreters are guided by the so-called "rules" of statutory interpretation. They describe the evidence relied on and the techniques used by courts to arrive at a legally sound result. The rules associated with textual analysis, such as implied exclusion or the same-words-same-meaning rule, assist interpreters to determine the meaning of the legislative text. The rules governing the use of extrinsic aids indicate what interpreters may look at, apart from the text, to determine legislative intent. Strict and liberal construction and the presumptions of legislative intent help interpreters infer purpose and test the acceptability of outcomes against accepted legal norms.
[20] In addition to these norms it is also important to recall s. 9(5) of the Interpretation Act, R.S.N.S. 1989, c. 235 which provides:
9(5) Every enactment shall be deemed remedial and interpreted to ensure the attainment of its objects by considering among other matters
(a) the occasion and necessity for the enactment;
(b) the circumstances existing at the time it was passed;
(c) the mischief to be remedied;
(d) the object to be attained;
(e) the former law, including other enactments upon the same or similar subjects;
(f) the consequences of a particular interpretation; and
(g) the history of legislation on the subject.
[21] I will now address the relevant portions of the Act bearing in mind Professor Sullivan’s framework for analysis which encompasses what she has described as three “dimensions”. The first dimension involves a determination of the meaning of the words in the statute which must be read in their ordinary sense and as a coherent whole in harmony with the scheme and objects of the Act and the intention of the Legislature. The second focuses on the Legislature’s specific intentions, purposes and objectives. The third examines the consequences of the proposed interpretation and asks whether it is consistent with established legal norms that members of the Legislature are presumed to know.
[22] I will start by setting out the relevant legislative provisions.
[23] Section 2 of the Act contains the statute’s declaration of purpose:
2. The purpose of this Act is to support and promote the protection, enhancement and prudent use of the environment while recognizing the following goals . . .
[24] Section 3 of the Act provides a definition of “place”:
3(an) “place” includes any land, building, structure, machine, aircraft, vehicle or vessel.
[25] Part XI of the Act is entitled “Air-Quality Management”. Part XII deals with Inspections and Investigations. Section 117 refers to “dwelling place”, while s. 118 refers to “any place” or “the place”. For convenience I will cite the relevant provisions of s. 119(1) and (1A):
119(1) For the purpose of ensuring compliance with this Act, the regulations, a standard or an order made under Part XIII, an inspector, subject to Sections 22 and 120, may, at any reasonable time
(a) enter and inspect any place to which this Act applies to determine ...
(iv) compliance with this Act, the regulations and the standards; ...
(c) enter and inspect any place to which this Act applies in or from which the inspector believes a substance is being, has been, or may be released into the environment; ...
(1A) An inspector and a person lawfully accompanying an inspector may, while carrying out duties under this Act, enter on or pass over any land or water, whether enclosed or not, without being liable for trespass and without the owner of the property having the right to object.
[26] Subsection (1B) describes the powers of an inspector carrying out an inspection pursuant to s. 119(1). Section 120 reads:
120 Notwithstanding anything contained in this Act, an inspector may not enter a private dwelling place or any part of a place that is designed to be used and is being used as a permanent or temporary private dwelling place except
(a) with the consent of the occupant of the place;
(b) pursuant to an order under Section 121 to enter and inspect, or under the authority of a search warrant. (Italics for emphasis mine)
[27] Section 121 refers to “a place”, “anything” and “the place”.
[28] From this it is clear that in order to ensure compliance with the Act, or regulations, standards or orders made pursuant to it, an inspector is authorized to enter and inspect any place to which the Act applies, at any reasonable time, and in doing so may enter or pass over land or water without being liable for trespass and without the owner of the property having the right to object, subject only to the exception that entry into a “private dwelling place” requires either the consent of the occupant or a court order. Thus, the outcome in this case turns on a very narrow issue, that being whether Mr. Hicks’ burn barrel in his front yard was situated in a “private dwelling place” such that Inspector MacKenzie was prohibited from examining the inside of the barrel unless she had first obtained Mr. Hicks’ consent, failing which she needed a court order authorizing her entry and inspection. The question then becomes: what meaning ought to be ascribed to the three words “private dwelling place”?
[29] I start with the word “place”. It is a defined term in the statute. As noted earlier, s. 3 of the Act defines “place” as:
Includes any land, building, structure, machine, aircraft, vehicle or vessel; (Underlining mine)
Thus, “place” is defined expansively. The list provided is intended to be illustrative and not exhaustive. Depending upon the context within which the word is used, “place” can mean land, or a building, or a structure, or a vehicle, and so on. The word “place” appears throughout Part XII of the Act. Section 117 refers to a “dwelling place”. As we have seen, “place” is found throughout s. 119. Yet it is significant that the phrase chosen by the Legislature in s. 120 is “private dwelling place”.
[30] In my view, the use of the word “place” in the context of s. 120 must be informed by both the s. 3 definition contained in the Act as well as the words “private dwelling”. Webster’s Dictionary defines “private” as:
Belonging to oneself, not public or of the state; not open to, intended for, or controlled by the public.
[31] The Oxford English Dictionary (Online Version) defines “dwelling” as:
a house, apartment or other place of residence.
[32] Black’s Law Dictionary defines “dwell” as:
To have an abode; to inhabit; to live in a place.
and defines “private dwelling place” as:
...a place or house in which a person or family lives in an individual or private state ... or home, ... some permanent abode or residence, in which one has the intention of remaining;
[33] Reading these words in their ordinary sense persuades me that the meaning the Legislature intended to be conveyed by the words “private dwelling place” was the concept of a structure, an abode that one actually inhabits. In other words, a residence where persons eat, sleep and take shelter. It is a private place inhabited by its occupants and is not open to the general public. That must surely be the meaning the Legislature intended when creating the limited exception contained in s. 120. For convenience I will repeat this provision:
120. Notwithstanding anything contained in this Act, an inspector may not enter a private dwelling place or any part of a place that is designed to be used and is being used as a permanent or temporary private dwelling place except
(a) with the consent of the occupant of the place; or
(b) pursuant to an order under Section 121 to enter and inspect, or under the authority of a search warrant. (Italics for emphasis mine)
[34] The interpretation I have applied to the words “private dwelling place” finds support in the words that immediately follow the phrase:
... or any part of a place that is designed to be used and is being used as a permanent or temporary private dwelling place ....
From this it appears obvious to me that an abode, a structure inhabited by persons on a permanent or temporary basis is what the Legislature intended the words “private dwelling place” to mean. That was the special circumstance the Legislature foresaw as requiring either permission, or a court order, before entry.
[35] When I say “structure” or “residence” I do not limit those words to the Western notion of something built with bricks and mortar. On the contrary, the phrase “private dwelling place” might well be a temporary or easily moved abode such as a tent, a yurt, a bunkhouse, a cabin or a cottage. The materials with which the structure is assembled will be irrelevant, provided the place would be seen by any reasonable observer as one in which persons resided and took shelter. Put simply, to be a dwelling place that is private requires that a person dwell within its walls and under its roof.
[36] That is the exception provided for in s. 120 where, before entering, an inspector would first have to obtain the consent of the occupant or a court order, before entry and inspection would be authorized.
[37] Such an interpretation is in harmony with the scheme and objects of the Act. As noted earlier, s. 2 of the Act contains the statute’s declaration of purpose which is:
... to support and promote the protection, enhancement and prudent use of the environment while recognizing the following goals ....
Its overarching objective is the protection and careful management of the environment for the greater good. Citizens recognize and accept that the state retains a legitimate underlying interest in the environment which might be characterized as upholding a public trust.
[38] The occasional tension between public and private interests and the importance of regulatory legislation in balancing those interests was recognized by the Supreme Court of Canada in Comité paritaire de l’industrie de la chemise v. Potash; Comité de l’industrie de la chemise v. Sélection Milton, [1994] 2 S.C.R. 406. In that case, the question before the Court concerned the powers of inspectors to investigate working conditions and suspected human rights abuses under the Quebec Charter of Rights and Freedoms. In delivering the judgment of the majority, which allowed the appeal and upheld the validity of the law empowering such inspections, LaForest, J. stated, at ¶9-10:
The federal and provincial legislatures have, in a number of statutes, included powers of inspection similar to those whose validity is challenged by the respondents in the present case. These statutes deal with areas as diverse as health, safety, the environment, taxation and labour. The common thread is found in their underlying purpose: harmonizing social relations by requiring observance of standards reflecting the sometimes delicate balance between individual rights and the interests of society. Inspection -- or the threat of it -- especially if it is done without notice, is a practical means of encouraging such observance. ...
While the importance of the purpose and need of the powers of inspection cannot be doubted, they must still be balanced against the individual's expectations of privacy.... (Italics for emphasis mine)
And further at ¶15:
In view of the important purpose of regulatory legislation, the need for powers of inspection, and the lower expectations of privacy, a proper balance between the interests of society and the rights of individuals does not require, in addition to the legislative authority, a system of prior authorization. Of course the particular limits placed on the inspection scheme must, so far as possible, protect the right to privacy of the individuals affected. ...
[39] The nature of this relationship between the individual and the state in the context of regulatory legislation, was considered by Ross, P.C.J. in R. v. Bagnell, 2004 NSPC 29. Judge Ross’s comments at ¶18 and ¶40 are instructive:
18 Even if, later in the summer and fall of 2002, one considers that DFO was in an investigation mode (rather than an inspection mode), the context and purpose of the searches, being related to features of the natural environment, may well serve to make them reasonable. No real property interests are absolute. Hunters and surveyors may traverse land and fishermen may traverse streams. The State retains a legitimate underlying interest in fish and wildlife which may be seen as subject to a public trust rather than being the private property of the title holder. When the fishery officers went on Mr. Bagnell's property to look at the pond, they were simply determining the natural pre-existing features of this property.
...
40 Even absent an application for regulatory approval of some sort, where fishery officers or other agencies take an interest in activity occurring on private property which might reasonably involve damage or destruction of habitat, or some other environmental insult, an inspection/search conducted bona fides, performed reasonably, with the minimum amount of intrusion, may not be unreasonable, even in the absence of a warrant and consent. However, where the Defendant here has made an application for regulatory approval concerning the very activity in question any resulting search is even more obviously reasonable. Accordingly I find no violation of the Defendant's s. 8 Charter Right. (Underlining mine)
[40] Neither the trial judge nor the SCAC judge referred to the clearly stated and extensive declaration of purpose contained in s. 2 of the Act, or to any of the well-settled norms for statutory interpretation. Respectfully, these failings caused them to err in the interpretation of “private dwelling place” in s. 120 of the Act.
[41] Looked at another way, interpreting the phrase “private dwelling place” as including Mr. Hicks’ yard where his burn barrel was located would be incompatible and incongruent with the stated purpose and objects the Act is intended to achieve. Ordinarily, toxic, noxious, dangerous or other such deleterious materials tend to be found outdoors and not inside a person’s dwelling place. But for the possibility of coming across a moonshine still in a root cellar, or a meth lab set up in a mobile trailer, it would be unusual to find someone using or storing prohibited materials in the place in which they lived.
[42] In my respectful opinion, it could never have been the intention of the Legislature to oblige inspectors carrying out their duties in accordance with the Act to be prohibited from entering and inspecting the yards and outlying lands of a property owner without first obtaining the owner or occupants consent or, failing that, a court order. Such a prohibition would be the result if one were to interpret the words “private dwelling place” as including Mr. Hicks’ yard. There are all kinds of yards: back yards, front yards, barn yards, scrap yards, freight yards, shipyards, to name a few. These are the places one is likely to find the kinds of things or substances which are meant to fall under the scrutiny and surveillance of the Act. Yet by any objective standard, such locales would hardly be considered a “dwelling place” where someone resided on a permanent or temporary basis.
[43] The suggestion made by the SCAC that a modest area of land surrounding, or “directly associated with or attached to the house” could be taken to be part of the private dwelling place would, respectfully, be entirely unworkable. It would force every inspector to make a judgment call about the size of the perimeter, or adjoining, or abutting land. What would qualify? A lot 50 x 100? One acre? A hectare? The decision would be completely arbitrary and lead to confusion and inconsistency across the province, with dramatic disparities between rural and urban communities. That cannot be what the Legislature intended.
[44] To ensure compliance with the legislation and achieve its intended objectives, inspectors must be confident in the knowledge that they have the authority to enter and search such lands without first being required to obtain the occupant’s consent or, failing that, a court order. To require notice, or delay the entry until a warrant could be obtained would, in many instances, defeat those very objectives.
[45] As noted earlier, neither the trial judge nor the SCAC gave any thought to the purpose and breadth of the Act. Even a cursory review of the statute reveals its vast scope and the broad powers accorded the Minister and government inspectors to enforce its terms. The statute effectively proclaims the stewardship of the environment as being the responsibility of both citizens and government. It establishes a mandate to find and hold accountable polluters and other offenders. It affirms an explicit goal of remediating adverse consequences. It expressly states that the Act is intended to provide a regulatory regime that is quick, effective and fair. The breadth of the legislation is reflected in the broad definitions of such terms as “air”, “environment” and “water course”. The statute targets the use or handling of waste, pollutants, and other contaminants, giving broad powers to inspectors in the investigation and enforcement of standards, as well as the prosecution of violators whose actions would negatively impact upon human health. The Act expressly provides that owners or occupiers have an obligation to co-operate and assist the inspectors in their work.
[46] This brief overview of the scope and purpose of the Act serves to highlight the Legislature’s clearly stated objectives of protecting the environment for the greater good while at the same time respecting private interests. In my respectful view, the interpretation I have placed upon the impugned words in this case recognizes the laudatory result achieved by permitting inspection – or the threat of it – without notice, as a practical means of encouraging compliance for the sake of the community at large while, at the same time, maintaining a proper balance between the public interest and the individual’s right to privacy as described by the Supreme Court of Canada in Comité paritaire, supra.
[47] Finally, the consequences of the interpretation I have expressed are consistent with the legislative intention and accord with the well-recognized rules of statutory interpretation previously mentioned.
[48] I do not accept the respondent’s submission at the hearing before us that allowing the Crown’s appeal in this case would lead to an “open season” of provincial inspectors “leaping fences” to shut down family barbecues or cottage picnics. Respectfully, I don’t think it can be seriously suggested that taking steps to investigate and prohibit the burning of garbage, or tires, or other noxious substances for the good of the community will be seen as somehow sanctioning state-intrusion into legitimate family activities. Inspectors carrying out their lawful duties under the Act are expected to do so using tact, common sense and good judgment; otherwise their actions are sure to invite unintended litigation and consequences.
[49] In summary, both the trial judge and the SCAC erred in finding that the term “private dwelling place” included more than Mr. Hicks’ house and incorporated his yard such that Inspector MacKenzie was obliged to obtain his consent, or a court order, before inspecting the burn barrel on his property. Reading the words “private dwelling place” in their ordinary sense and as a coherent whole in harmony with the scheme of the Act and the intention of the Legislature; and taking account of the Act’s clearly stated purposes and objectives; as well as long settled interpretative norms leads me to the conclusion that the words “private dwelling place” in s. 120 of the Act can only refer to the structure where persons actually reside. Before entering such a private dwelling place an inspector will require the consent of the occupant or, if such consent is refused, a court order authorizing the entry and inspection. But such permission or warrant is not required to enter and search the land on which the dwelling is situate.
[50] Mr. Hicks’ outside yard was not a private dwelling place. Inspector MacKenzie had the authority to enter Mr. Hicks’ land to carry out her inspection of the burn barrel and she did not need Mr. Hicks’ permission or a court order to do so.
[51] Having concluded that the Crown’s appeal ought to be allowed, and Mr. Hicks’ acquittal on a charge under s. 158 of the Environment Act should be set aside, the only remaining question is whether the case ought to be sent back for a new trial.
[52] After reviewing Judge Scovil’s decision it is obvious that there is no need to send it back. In his reasons Judge Scovil said:
[11] Here the conduct of Mr. Hicks was such that he impeded and delayed Inspector MacKenzie in her attempt to inspect his premises. Provided the inspector had lawful authority to conduct such an inspection the actions of Mr. Hicks were those that would fall within the category of hindering and obstructing as envisaged under the Act. Mr. Hicks’ purpose in his action was clearly to keep an inspection from occurring.
[53] In light of these findings and my conclusion that Inspector MacKenzie had lawful authority to enter on to Mr. Hicks’ property for the purposes of inspecting his burn barrel, I would substitute a conviction and remit the case to Judge Scovil for sentence. That is the only issue left to be resolved.
Conclusion
[54] I would grant leave to appeal, allow the appeal, overturn the decision of the SCAC, set aside the acquittal entered at trial, substitute a conviction on the offence charged, and remit the case to the Provincial Court for sentencing.
Saunders, J.A.
Concurred in:
Farrar, J.A.
Bryson, J.A.