Court of Appeal for Ontario
Judges: Strathy C.J.O., Doherty and Roberts JJ.A.
Between
Her Majesty the Queen (Ministry of the Environment and Climate Change)
Appellant
and
Jason John Geil
Respondent
Counsel:
Kathleen A. Clements and Nicholas P. Adamson, for the appellant
Harald A. Mattson, for the respondent
Heard: September 19, 2018
On appeal from: The order dated August 24, 2017 of Justice Norman S. Douglas of the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court, allowing the appeal from the conviction entered on January 27, 2017 by Justice of the Peace Ralph Cotter of the Ontario Court of Justice.
Opinion of the Court
[1] Introduction
1This Crown appeal concerns warrantless inspection powers under s. 156(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19 ("EPA"). Subsection 156(1)(c) permits a provincial officer, without a warrant or court order, to inspect any place in or from which the officer "reasonably believes" a contaminant "is being, has been or may be discharged into the natural environment". This appeal requires us to interpret the standard of "reasonable belief" grounding the inspection power and to apply that standard to the factual circumstances of this case.
2The essential facts were uncontested at trial. The respondent admitted that on the day of the alleged offence, November 22, 2013, there was an open fire burning on his property and that he prevented a provincial officer from the Ministry of the Environment and Climate Change ("MOE") from entering the property to carry out an inspection. The respondent was charged with hindering or obstructing the provincial officer in the performance of his duties, contrary to s. 184(1) of the EPA.
3The only issue at trial was whether the provincial officer had the requisite authority under s. 156(1) to conduct a warrantless inspection of the respondent's property on the date of the alleged offence.
4The justice of the peace of the Provincial Offences Court found that the provincial officer had authority to enter the respondent's property pursuant to s. 156(1)(c), and entered a conviction. The respondent appealed to a judge of the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court ("POAC"). The POAC judge quashed the conviction and entered an acquittal.
5The Crown sought leave to appeal to this court on special grounds on a question of law alone, pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33. Leave was granted by a single judge of this court on December 13, 2017.
6For the reasons that follow, I would allow the appeal, set aside the acquittal, and restore the conviction entered by the justice of the peace.
I. The Facts
7On November 22, 2013, a bylaw officer of the Township of North Dumfries received a call from a resident, who stated that construction debris was being hauled onto a neighbouring property where it was being burned. The bylaw officer attended at the caller's property that same morning. He spoke to the neighbour, and observed a large fire on the respondent's property. He could not say for certain what was being burned, but testified that it included wood. He observed smoke coming from the fire, but did not detect any unusual colour or smell.
8The bylaw officer informed the MOE of his observations.
9Within about four hours of the bylaw officer's initial observations, two MOE provincial inspection officers attended at the respondent's property, together with the bylaw officer and two officers from the Waterloo Regional Police.
10One of the provincial officers testified that, based on the information he had received from the bylaw officer, he had three concerns: waste was being transported to and being disposed of on the respondent's property, an activity regulated by Part V of the EPA; the waste was being burned; and the compounds generated by the burning waste would be emitted into the natural environment in the form of smoke.
11The provincial officer did not personally see smoke or fire until he entered the respondent's property. It is acknowledged by the appellant that the reasonableness of the officer's belief must be assessed on the basis of the state of his knowledge before he entered the property.
12After the provincial officer entered the property, he observed smoke from a "fairly substantial fire" of broken wood. He identified himself and informed the respondent that he wanted to inspect the fire to determine whether or not waste was being burned, and whether it constituted a contravention of the EPA. The respondent told the provincial officer that open burning was occurring on his property. The bylaw officer asked the respondent what was being burned, and the respondent indicated that he was burning debris from a demolished barn on the property. The respondent denied the officers access to inspect the fire and asked them to leave. The officers did so.
II. Decisions in the Courts Below
Provincial Offences Court
13The justice of the peace noted that a reasonable belief is not the same as reasonable and probable grounds in the criminal context. Applying an analysis based on R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168, as applied in R. v. Kalsatos, 2016 ONCJ 353, 361 C.R.R. (2d) 71, at para. 72, the justice found that the provincial officer had acted on a credible and reliable tip. In making this finding, he noted that: (1) the presence of a fire was confirmed by both the neighbour and by the bylaw officer; (2) their observations were timely and close to the time of the inspection; and (3) there had been a history of burning on the property.
14The justice of the peace noted that the information received by the provincial officer from the bylaw officer was sufficient to engage the provincial officer's inspection powers, even though that officer saw no smoke or fire before he entered the property. Section 156(1)(c) permitted the officer to enter the property if he reasonably believed a contaminant had been discharged. The respondent was convicted.
Provincial Offences Appeal Court
15In a brief decision, the POAC judge held that the trial justice erred in law in interpreting the provincial officer's right to enter the property without a warrant.
16He held that the provincial officer's belief that contaminants may have been discharged did not have an adequate foundation. It was not enough that the provincial officer was told by someone else that someone may have been discharging contaminants in the air.
17The respondent was not obstructing or hindering the provincial officer in the execution of his duties, because the provincial officer did not have authority to enter the respondent's property. The POAC judge added:
Had the Inspector gone and got a warrant to enter the property, he would have had to convince the Justice of the Peace that he had a reasonable belief, and then he would have been in the lawful execution of his duty …
18The POAC judge allowed the appeal and quashed the conviction.
III. The Issues
19There are two issues raised in this appeal:
a. Did the POAC judge err in his articulation of the legal test for a regulatory inspection under s. 156(1) of the EPA?
b. Did the POAC judge err in finding that the provincial officer did not have the authority to conduct an inspection of the respondent's property under s. 156(1) of the EPA?
20As I have noted, a resolution of these issues requires this court to interpret the requirement of "reasonable belief" in s. 156(1).
21Before setting out my analysis, I will briefly summarize the parties' positions.
IV. The Parties' Positions
Appellant
22The appellant's position is that smoke is a contaminant under the EPA. A direct observation of the discharge of smoke by the bylaw officer and the report of the neighbour were sufficient to support the provincial officer's reasonable belief that a contaminant was being, had been, or may be discharged into the natural environment. This belief enabled the officer to employ the inspection powers in s. 156(1).
23The appellant takes issue with the analysis of both the trial justice and the POAC judge. The appellant submits that it was not appropriate to import into the regulatory context the legal standard set out in Debot for assessing "tips" in a criminal law context. While the trial justice found that the Debot standard was met in this case, the appellant submits that he set the bar too high.
24The meaning of "reasonable belief" must be determined based on the nature of the regulatory power and the context in which it is exercised. The purpose of regulatory inspections is to determine compliance, not penal liability. By their very nature, regulatory inspections occur before there are reasonable grounds to believe an offence has been committed. The statutory standard of reasonable belief in the regulatory context is lower than what is required under the criminal law.
Respondent
25The respondent asks this court to find that reasonable belief means more than mere suspicion. He submits that the report of smoke, with no evidence of an unusual colour or odour, could not give rise to a reasonable belief that waste was being hauled onto the property and burned. There was no evidence that wood smoke is a contaminant or that the wood being burned on the property contained contaminants.
V. Analysis
(a) The Object and Scheme of the EPA
26The primary issue raised in this appeal – the meaning of "reasonably believes" in s. 156(1) of the EPA – is a matter of statutory interpretation. The modern approach requires that the words of the statute 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 the enacting legislative body: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Agraira Canada v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 64.
27In the analysis that follows, I will consider: (a) the object and scheme of the EPA; (b) the context of the legislative provision; and (c) the plain meaning of "reasonable belief". Having undertaken this analysis, I will set out in section (d) my interpretation of s. 156(1). Finally, in section (e), I will apply that interpretation to the facts of this case, after contrasting it with the interpretations in the courts below.
The Object and Scheme of the EPA
28The EPA is Ontario's primary environmental protection statute: Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, at para. 9. Its purpose, consistent with its name, is set out in s. 3(1): "to provide for the protection and conservation of the natural environment." The "natural environment" is defined in s. 1(1) of the EPA as "the air, land and water, or any combination or part thereof".
29Courts have recognized that this purpose extends beyond the natural environment and includes the protection of "human health, plant and animal life, and property": Castonguay, at para. 10; R. v. Dow Chemical Canada Inc., 47 O.R. (3d) 577, at para. 49.
30The EPA, and the extensive regulatory framework enacted under it, establish a scheme for the regulation of many activities affecting the natural environment. It is remedial legislation and, as this court has observed, it is to be given a "large and remedial" interpretation: Re Rockcliffe Park Realty Ltd. and Director of the Ministry of the Environment et al., 10 O.R. (2d) 1, per Dubin J.A., at p. 15, per Jessup J.A. (dissenting), at p. 7. See also Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1).
31While the EPA is remedial legislation, it also has protective and preventative purposes: Castonguay, at paras. 12, 21; see also R. v. Consolidated Mayburn Mines Ltd., [1998] 1 S.C.R. 706, at para. 54. This is apparent from the scope of the regulations and the reporting requirements, and the wide range of inspection, enforcement, and remedial powers contained in the Act. The Supreme Court in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, noted, at para. 43, that environmental legislation embraces an expansive approach, to ensure that it can adequately respond "to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation."
32The court in Castonguay affirmed these observations, at para. 9, and also acknowledged that the effective functioning of the EPA is premised upon the expertise and investigative resources of the MOE in fulfilling the statutory mandate, stating, at para. 18:
When a contaminant is discharged, the discharger may not know the full extent of the damage caused or, in the words of s. 15(1), likely to be caused. Moreover, many potential harms such as harm to human health, or injury to plants and animals, and even impairment of the natural environment, may be difficult to detect without the expertise and resources of the Ministry. As a result, the statute places both the obligation to investigate and the decision about what further steps are necessary with the Ministry and not the discharger.
33The EPA achieves its statutory purpose by, among other things, establishing limits on permissible discharges of contaminants. It also regulates a host of activities that can cause pollution, including waste management facilities. These functions are accomplished through a system of licences and approvals for certain activities.
34The EPA contains a general prohibition, in s. 6, against the discharge into the "natural environment" of "any contaminant" in an "amount, concentration or level" in excess of that prescribed by regulations. A "contaminant" is broadly defined in s. 1(1) as "any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect" (emphasis added). The term "adverse effect" is also broadly defined. It includes the impairment of the natural environment, harm or material discomfort to any person, an adverse effect on the health of any person, and loss of enjoyment of the normal use of property.
35Part X of the EPA contains detailed provisions with respect to environmental "spills", a term that means the discharge of an abnormal quantity of a pollutant into the natural environment. A person responsible for a spill is required to report it, to take measures to mitigate its effect, and to restore the natural environment.
36With respect to enforcement powers, Part XI of the EPA contains provisions enabling a Director to issue "control orders" and "stop orders" to require the person to whom the order is directed to stop or limit the discharge of a contaminant into the natural environment, or to take measures to control or eliminate the discharge.
37The EPA further provides that every person who contravenes the Act or regulations is guilty of an offence and provides for a fine or conviction, or in the case of a subsequent offence by an individual, a fine or imprisonment.
38I now turn to an examination of the place of s. 156(1) in the range of regulatory powers enumerated in the Act.
(b) The Context of the Legislative Provision
39The EPA contains a broad range of inspection, compliance, prevention, and enforcement provisions. The provisions of the EPA are administered and enforced by Directors appointed by the Minister and by "provincial officers". The powers of provincial officers are set out in Part XV. Subject to certain limits, they are given the power to make inspections (ss. 156, 156.1, 158), to conduct searches (s. 161), to take samples (s. 159), and to seize evidence (s. 160), among other things.
40A provincial officer's authority to make inspections is central to the protective and regulatory purposes of the EPA and is derived primarily from two key provisions in Part XV – s. 156 and s. 158. A third provision, s. 156.1, provides provincial officers with the power to inspect vehicles and vessels.
Section 156(1): Inspection
41Section 156(1), the provision engaged in this appeal, confers authority on a provincial officer to make inspections, without a warrant or court order, for a range of purposes necessary for the effective administration of the EPA. The scope of that authority and the circumstances in which it may be exercised are informed by the remedial, preventative, and protective purposes of the statute.
42The provincial officer's authority includes a broad right, under s. 156(1)(a) to enter "any part of the natural environment", without a warrant or court order, to make an inspection to "ascertain the extent, if any, to which contaminants have caused an adverse effect, the causes for any adverse effect, and how any adverse effect may be prevented, eliminated or ameliorated and the natural environment restored". There is no standard of "reasonable belief" or other requisite state of knowledge applicable to entry into "any part of the natural environment" in s. 156(1)(a), nor is the standard of "reasonable belief" incorporated into six other enumerated circumstances in s. 156(1): see ss. 156(1)(e.1), (f), (g), (h), (i), and (k).
43The standard of "reasonable belief" comes into play in five of the enumerated circumstances in s. 156(1). In those five circumstances, the language of "the provincial officer reasonably believes" is used as a condition of entry into "any place": see ss. 156(1)(b), (c), (d), (e), and (j). These provisions provide, among other things, that an officer may enter "any place" in which the provincial officer "reasonably believes" that anything governed or regulated by the Act may be found (s. 156(1)(b)), that certain documents are likely to be contained (s. 156(1)(d)), that is subject to or required to be subject to a permit, licence, or approval (s. 156(1)(e)), or that the permit and plates of a vehicle may be found in order to seize them in accordance with ss. 48 or 49 (s. 156(1)(j)).
44Section 156(1)(c), the provision at issue here, provides:
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.]
45During an inspection under s. 156(1), the provincial officer is entitled to, among other things, make excavations, take samples, conduct tests or take measurements, require that anything be operated under specified conditions, examine, record or copy documents, take photographs, and require the production of documents or data: s. 156(2). However, the provincial officer may not inspect "a room actually used as a dwelling without the consent of the occupier" except under the authority of a court order under s. 158: s. 156(5).
46A comparison of the inspection powers set out in s. 156(1) with other powers accorded to provincial officers by the Act, provides insight into the interpretation of s. 156(1). Part XV of the EPA sets different standards applicable to the provincial officer's knowledge in order to support the exercise of the enumerated powers. The standard depends on the context. In the case of s. 156(1)(a), which permits entry into "any part of the natural environment", there is no requisite state of knowledge. In some circumstances, such as those set out in ss. 156(1)(b), (c), (d), (e), and (j), the statute requires reasonable belief. The same standard of reasonable belief applies to many other exercises of a provincial officer's powers under the provisions of the EPA.
47The "reasonable belief" standard set out in certain provisions of s. 156(1) also governs the provincial officer's authority to issue contravention orders under s. 157 of the EPA. Section 157 provides that a provincial officer may, among other things, issue an order to any person that he or she "reasonably believes" is contravening the provisions of the Act or regulations, or another order made under the Act. The order may require the person to comply with any directions related to achieving compliance with the Act or regulations.
Section 158(1): Judicial Authorization
48The provisions of s. 156(1) are to be contrasted with s. 158(1), which provides that a justice may authorize a provincial officer to do anything enumerated in s. 156 if the justice is satisfied, by evidence under oath by a provincial officer, that there is "reasonable ground to believe" that it is appropriate for the provincial officer to do so for administration of the Act, and that the provincial officer may not be able to effectively carry out his or her duties without such an order.
49Section 158(1) permits an officer to obtain an entry or inspection order in circumstances where, among other things, no occupier is present to grant access; a person has prevented the officer from conducting an inspection; or there are reasonable grounds to believe that an inspection without the order may not achieve its purpose or might endanger human health, property or the natural environment. In the situations captured under s. 158(1):
A justice may issue an order authorizing a provincial officer to do anything set out in subsection 156(1) or (2) or section 156.1 if the justice is satisfied, on evidence under oath by a provincial officer, that there is reasonable ground to believe that it is appropriate for the administration of this Act or the regulations for the provincial officer to do anything set out in subsection 156(1) or (2) or section 156.1 and that the provincial officer may not be able to effectively carry out his or her duties without an order under this section … . [Emphasis added.]
Section 161: Search Powers
50The inspection powers authorized by s. 156 are also to be distinguished from the search powers in s. 161 of the EPA. Section 161(2) authorizes a search, without a warrant, of any place other than a room actually used as a dwelling, where a provincial officer has "reasonable ground to believe": (a) that an offence has been committed related to the discharge of a contaminant into the natural environment or to hazardous waste or hauled liquid industrial waste; (b) that there is in such place any thing that will afford evidence as to the commission of the offence; and (c) that there are exigent circumstances that make it impractical to obtain a search warrant. As indicated above, the same standard"reasonable ground to believe", applies when a justice issues an order under s. 158(1).
Section 156(1) in Context
51Viewing s. 156(1) in the context of the range of powers enumerated in the Act indicates that this provision authorizes activities intended to support the provincial officer's preventative and compliance powers. It is not directed at the investigation of offences, the seizure of evidence, or the issuance of binding orders or directions. It is at the least intrusive end of the provincial officer's authority. As outlined above, more intrusive powers require a higher level of belief or knowledge, or require prior judicial authorization.
52The more onerous standard of "reasonable and probable grounds" applies to the Director, when issuing a stop order, control order, or an order for certain preventative measures or financial assurances.
53Against this statutory backdrop, I turn to the meaning of "reasonable belief".
(c) The Plain Meaning of "Reasonable Belief"
54Sometimes the "plain meaning" of a statutory term gets lost in the application of rules of interpretation. The term "reasonable belief", while not commonly used in everyday conversation, is not complicated.
55A belief is a state of mind. It is an acceptance of the truth of something, without necessarily having personal knowledge of its truth. It can be contrasted with suspicion, which is based on supposition. A belief suggests a higher level of certainty than suspicion, but something less than knowledge.
56But the word "believes" in s. 156(1)(c) is qualified by "reasonable". A reasonable belief is one that a reasonable person would hold, based on the existence of some objective evidence to support the belief.
57The term "reasonably believes" is itself qualified in some parts of s. 156(1). For example, in s. 156(1)(c), the officer may enter any place in which the officer reasonably believes "a contaminant is being, has been or may be discharged into the natural environment". Section 156(1)(d) authorizes the entry into any place that the provincial officer reasonably believes "is likely to contain documents" related to certain enumerated activities.
58It is of some significance that the term "reasonably believes" as a pre-condition to the exercise of warrantless inspection powers is found in several other statutes in Ontario's suite of environmental protection legislation.
59In spite of this, there is no clear legal definition of the term, either in the statutes or in the authorities. Some assistance may be gleaned, however, from the case law interpreting the term "reasonable ground(s) to believe" in other statutory contexts. That case law can serve as a benchmark against which to measure the "reasonable belief" standard in s. 156(1). As is apparent from the case law, however, caution must be exercised because a general term such as "reasonable ground(s) to believe" takes its meaning from its context.
60In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, the Supreme Court considered the meaning of "reasonable grounds to believe" in a regulatory context. Section 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I-2, provided that "[n]o person shall be granted admission who is a member of any of the following classes: … persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity".
61The Supreme Court affirmed Federal Court of Appeal jurisprudence holding that "reasonable grounds to believe" requires something more than "mere suspicion", but less than proof on the balance of probabilities. It requires "an objective basis for the belief which is based on compelling and credible information": Mugesera, at para. 114.
62In discussing this formulation of the standard, the Federal Court in Canada (Minister of Citizenship and Immigration) v. U.S.A., 2014 FC 416, at para. 22, noted that the standard of reasonable grounds to believe is "novel" given that beliefs are "very open ended". The court explained that "[r]equiring the belief to be 'reasonable' brings the standard into the factually-bound legal world … fixing the meaning of the standard by reference to elements of its composition that are familiar in the juristic world."
63In U.S.A., the court rejected the respondent's argument that the test under s. 19(1)(j) of the Immigration Act should include a requirement that the information be "corroborated", finding, at para. 24, that this would impose too high a standard.
64The standard articulated in Mugesera has been consistently applied in the immigration context and has also been applied by courts in other regulatory contexts: see e.g. Wier v. Canada (Minister of Health), 2011 FC 1322, 400 F.T.R. 212, at para. 97, involving s. 17(1) of the Pest Control Products Act, S.C. 2002, c. 28; Lyras v. Heaps, 2008 ONCJ 524, 51 M.P.L.R. (4th) 277, at para. 24, involving the Municipal Election Act, 1996, S.O. 1996, c. 32, Sched.
65This court has recently considered the "reasonable ground(s) to believe" standard as articulated in Mugesera in two cases. In Ontario (Registrar of Alcohol and Gaming Commission) v. 751809 Ontario Inc. (Famous Flesh Gordon's), 2013 ONCA 157, 115 O.R. (3d) 24, leave to appeal refused, [2013] S.C.C.A. No. 259, the Registrar brought an application before the Board of the Alcohol and Gaming Commission pursuant to s. 15(1) of the Liquor Licence Act, R.S.O. 1990, c. L.19 for an order revoking the respondent's licence on the basis that "reasonable grounds for belief" existed that the respondent would not "carry on business in accordance with the law and with integrity and honesty" within the meaning of s. 6(2) of the Act.
66The application was dismissed, the Register's appeal was dismissed, and the case was appealed with leave to this court. This court allowed the appeal on the basis that the board erred by applying the civil standard of "balance of probabilities" instead of the statutory standard of "reasonable grounds for belief": Famous Flesh Gordon's, at paras. 18-24. In describing the statutory standard, the court noted that there "is no doubt that this is a lower standard than a 'balance of probabilities'" and cited para. 114 of Mugesera as dealing "with this standard, one commonly used in regulatory statutes": Famous Flesh Gordon's, at para. 18.
67Some assistance is also found in the decision of this court in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, one of six appeals heard together to consider s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, commonly referred to as the "anti-SLAPP (strategic lawsuits against public participation)" provisions.
68Section 137.1(3) requires a judge to dismiss a proceeding against a person if that person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. An exception exists, which provides that a judge shall not dismiss a proceeding if the responding party (the plaintiff) satisfies the judge, among other things, that "there are grounds to believe" that the proceeding has substantial merit and the moving party has a valid defence in the proceeding: s. 137.1(4)(a).
69Doherty J.A., speaking for the court, found that the use of the word "satisfies" in s. 137.1(4) indicated that the applicable standard was a balance of probabilities. It was argued on a number of the appeals that the absence of the modifier "reasonable" in front of "grounds to believe" in s. 137.1(4)(a) signaled a lower standard than "reasonable grounds to believe". Doherty J.A. found that the word "reasonable" was implied in the text. He stated, at para. 69 of Pointes:
… Although the word "reasonable" does not appear in the text, I think it is implicit. The section requires a judicial assessment of the potential strength of the plaintiff's claim and the availability of any valid defence to the claim. Judicial decision-making is antithetical to decisions based on unreasonable or speculative grounds. A statute that requires a judge to have "grounds to believe" implicitly requires that those grounds be reasonable.
70Further assistance is provided by another decision in the anti-SLAPP sextet, Platnick v. Bent, 2018 ONCA 687, 23 C.P.C. (8th) 275. There, in interpreting the onus of proof under s. 137.1(4)(a) of the Courts of Justice Act, the motion judge had adopted the standard of "reasonable grounds to believe" as set out in Mugesera, namely that there must be "an objective basis for the belief which is based on compelling and credible information" and adapted it to the circumstances of the provision: Platnick v. Bent, 2016 ONSC 7340, 136 O.R. (3d) 339, at paras. 84, 86, citing Mugesera, at para. 114. Doherty J.A., at paras. 47-48, rejected this standard on the basis that the regulatory context at issue in Mugesera was distinguishable due to the nature of the proceeding, the task of the decision making body, and the substantive outcome of the process:
The kind of determination under consideration in Mugesera was very different from the determination a motion judge must make on a s. 137.1 motion. In Mugesera, the Immigration and Refugee Board (Appeal Division), after hearing 24 days of evidence, had to decide whether there were reasonable grounds to believe that Mr. Mugesera had committed war crimes and crimes against humanity. This involved determining whether there were reasonable grounds to believe that certain facts existed which, as a matter of law, would constitute such crimes. The description of the reasonable grounds to believe standard as requiring "compelling and credible information" was made in the context of a fact-finding exercise carried out after a hearing that lasted over three weeks. Mr. Mugesera's right to stay in the country hinged on that fact-finding.
A motion judge conducting a s. 137.1 motion does not make findings of fact under s. 137.1(4)(a). … In my view, the phrase "reasonable grounds to believe" used in the context of s. 137.1 calls for a less demanding inquiry than s. 19 of the Immigration Act required.
71Doherty J.A., at para. 49, further noted that the standard in Mugesera invites the decision maker or reviewing body to assess the merits or credibility of the information, rather than focusing on the issue of whether the record discloses a reasonable basis for the requisite belief:
Nor, in my view, is it simply a matter of word choice. I think the phrase "compelling and credible information" can easily lead a motion judge into an assessment of the ultimate merits of the case and the credibility of the claimants. As explained in Pointes, at paras. 78-82, the issue for the motion judge is not the ultimate strength of the claim or the believability of the plaintiff, but only whether the record provides a reasonable basis for believing the claim has substantial merit and that there is no valid defence.
72As the foregoing review suggests, the precise requirements necessary to meet a commonly used statutory standard are driven primarily by the context in which it is applied. However, some principles guiding the interpretation of "reasonable ground(s) to believe" can be distilled from the case law. First, the use of the word "reasonable" to qualify the standard of belief suggests that there must be an objective basis for the belief. Second, the requirements are informed by the degree of scrutiny to which the basis of belief is subjected. This, in turn, is informed by the circumstances in which the decision is made; the procedure involved; and the ultimate purpose of the decision resulting from the application of the standard. Finally"reasonable grounds to believe" has been interpreted in the regulatory context as requiring something more than mere suspicion, but something less than proof on a balance of probabilities.
73With these observations, I turn now to an interpretation of "reasonable belief" in the context of s. 156(1) of the EPA.
(d) The Interpretation of s. 156(1)(c)
74The contextual difference between the standard of "reasonable ground(s) to believe" as articulated in Mugesera, and applied in cases like Flesh Gordon's, and the standard of "reasonable belief" in the context of s. 156(1) is significant. Under s. 156(1), there is no independent scrutiny or assessment of the reasonable belief. It is the provincial officer's own belief in the circumstances that is at issue. Judicial assessment occurs if the officer's inspection is frustrated or impeded and a judicial order is required under s. 158. In such cases, a justice must be "satisfied" that there is "reasonable ground to believe" that the inspection power under s. 156 should be invoked. While both s. 156(1) and s. 158(1) invoke a standard of reasonable belief, the precise requirements for meeting the threshold of reasonable belief are informed by the distinct circumstances in which they are engaged.
75The determination of whether the standard under s. 158(1) is met is made by a judicial officer reviewing the request of the MOE for an order to conduct the inspection prompted by the circumstances enumerated in s. 156(1). As such, the nature of the reasonable belief must be communicated on evidence-based grounds, and subjected to a judicial assessment and weighing of the circumstances. Under s. 156(1), the reasonable belief is that of the provincial officer and accordingly invokes a subjective component which is engaged in an immediate and reactive manner. The requirement of reasonableness directs that this subjective belief must have an objective basis at the time that it is formed.
76While the provincial officer may be required to explain his or her belief after the fact, as is the situation in this case, the reasonableness of the belief is based on the provincial officer's assessment of the information available at the time the power of inspection is invoked. The provincial officer is not required to engage in the kind of weighing of evidence that a justice would undertake under s. 158(1).
77Having regard to the purpose and scheme of the EPA, the nature of the harm it seeks to prevent, and the need to promptly and efficiently investigate and respond to potential environmental harm, it is my view that "reasonable belief" in s. 156(1) describes a low threshold. The standard requires a subjective belief that is reasonable in light of the information available to the provincial officer in the circumstances. It requires the ability to articulate, after the fact, the provincial officer's assessment of the information available to him or her at the time.
78Accordingly, I conclude that a provincial officer may make an inspection under s. 156(1)(c) where there is a nexus between the purpose of the entry and the protective, preventative, or remedial purposes 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. This is consistent with the purpose of the inspection power and the context in which it is exercised.
79Regulatory inspections frequently take place, not to investigate non-compliance, but to promote and ensure compliance. Regulatory inspection powers are based on "the common sense assumption that the threat of unannounced inspection may be the most effective way to induce compliance": R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at p. 645.
80Because regulatory inspections focus on compliance rather than penal liability, they necessarily take place before there are grounds to believe an offence has been committed: R. v. Nicol, 114 C.C.C. (3d) 570, at p. 572"[i]t is the very nature of an administrative inspection that it takes place when there are not reasonable grounds to believe that a particular offence has been committed."
81The distinction between search powers (s. 161) and inspection powers (ss. 156, 158) in the EPA confirms that the focus of s. 156(1) is on inspection for the purpose of prevention, compliance, and enforcement, rather than investigation, evidence-gathering, and prosecution.
82Inspection is a baseline step through which the EPA monitors activities. Based on inspections, remedial measures, compliance orders, or other regulatory mechanisms may be engaged. A lower standard gives effect to the precautionary principles affirmed by the Supreme Court in Castonguay, at para. 20, and provides flexibility and responsiveness to situations "on the ground" that may require prompt action, beginning with inspection. It also recognizes that the expertise for assessing potential environmental effects lies with the MOE, as was discussed by the court in Castonguay: at paras. 18-19.
83Given the harm caused by release of contaminants and the potential damage caused by a failure to remediate, MOE inspectors must be able to act swiftly and effectively. A standard of "reasonable belief", rather than the more onerous standard of "reasonable and probable grounds" engaged in other provisions of the Act, allows for less time-consuming and intrusive fact-finding, given the need for prompt and effective action.
84This lower standard applicable to inspection powers is subject to appropriate statutory limits and safeguards. Section 156(5) provides that a provincial officer may not enter a room actually used as a dwelling without the consent of the occupier, except under the authority of an order under s. 158. Further balance is provided by s. 158(1), which provides that where a person (such as the respondent) has prevented the provincial officer from exercising the inspection powers in ss. 156(1) or (2), or s. 156.1, the provincial officer must obtain a judicial order for entry or inspection. Thus, it is open to an individual who believes that inspection powers are being engaged in an unreasonable or abusive manner to refuse inspection of their property in the absence of judicial authorization. These provisions provide an appropriate balance between the public interest in ensuring regulatory compliance and individual privacy rights.
(e) Application to This Case
85Returning to the circumstances of this case, in my respectful view, neither the POAC judge nor the justice of the peace at first instance accurately expressed the test for reasonable belief under s. 156(1).
86Although the POAC judge's analysis is not entirely clear from his brief reasons, he appears to have concluded that the information given by the bylaw officer to the MOE did not provide a sufficient basis for the provincial officer's "reasonable belief". It is not clear from his reasons that the POAC judge appreciated that smoke itself is a contaminant regulated under the EPA: see s. 1(1), discussed below.
87While the trial justice appropriately recognized that the nature of a regulatory inspection dictated a lower standard than reasonable and probable grounds, he set the bar too high when he adopted and applied the test from Debot applicable to informant tips in a criminal context.
88The Debot requirement that the information be "compelling""credible", and "corroborated" is inconsistent with the preventative and protective purpose of regulatory inspections under the EPA.
89Inspections cover a broad range of situations – from routine, scheduled visits to random spot checks to rapidly evolving "exigent" situations. As the appellant noted in oral argument, a requirement of corroboration or the assessment of credibility or reliability of complainants would require provincial officers to engage in more detailed investigation than the circumstances permit.
90Moreover, a requirement that the information be "compelling" is not necessarily consistent with the nature of the regulatory context of the EPA. As the Supreme Court noted in Castonguay, the environmental impact of a given activity may not be immediately apparent to an average citizen or even to MOE experts until an inspection takes place. There are "inherent limits" on the ability to determine and predict environmental impacts: at paras. 19-20. Accordingly, the bottom line conclusion the Supreme Court reached, at para. 2, in Castonguay regarding the scope of the reporting requirement under s. 15(1) of the EPA was: "when in doubt, report".
91In this case, the provincial officer exercised his inspection powers on the basis of a report made by the bylaw officer that very day, communicating the bylaw officer's own observations of the property and a report from a neighbour. The reports were that waste was being brought onto the property and smoke was being generated from an open fire.
92Smoke is regulated by the EPA and falls within the definition of a "contaminant" if it causes or may cause an adverse effect, including the impairment of the natural environment or an adverse effect on the health of any person: s. 1(1). See also Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at paras. 63, 72, per Gonthier J.; Rousseau v. McNab-Braeside (Township), 2001, 25 M.P.L.R. (3d) 267 (Ont. S.C.), at paras. 81, 93.
93In my view, the information received by the provincial officer prior to his attempt to enter the respondent's property was sufficient to support the existence of a reasonable belief that a contaminant was being or had been discharged into the natural environment as a predicate to the exercise of the provincial officer's s. 156(1) inspection powers. The information was communicated to the provincial officer by the bylaw officer, a person in a position of authority with responsibility for such matters. The information was objective. The neighbour was identifiable and had communicated directly with the bylaw officer. The bylaw officer's information included direct personal observations of the fire. The information was probative of the discharge of a contaminant into the natural environment and the purpose of the provincial officer's proposed inspection had a clear nexus to the purposes of the EPA. The provincial officer's testimony established a reasonable objective basis for his belief and permits the conclusion that his belief was reasonable.
VI. Conclusion
94For these reasons, I conclude that the provincial officer met the standard to engage his authority to inspect the respondent's property under s. 156(1)(c). The information provided to the provincial officer by the bylaw officer from his own personal observations and his conversations with the respondent's neighbour, was sufficient to support the provincial officer's reasonable belief that a contaminant, namely smoke, was being, had been, or would be discharged into the natural environment.
95I would allow the appeal, set aside the acquittal, and restore the conviction entered by the justice of the peace.
Released: December 14, 2018
"George R. Strathy C.J.O."
"I agree. Doherty J.A."
"I agree. Roberts J.A."
Appendix
Environmental Protection Act, R.S.O. 1990, c. E.19
156(1) 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,
(a) entering any part of the natural environment to ascertain the extent, if any, to which contaminants have caused an adverse effect, the causes for any adverse effect, and how any adverse effect may be prevented, eliminated or ameliorated and the natural environment restored;
(b) entering any place in which the provincial officer reasonably believes can be found anything that is governed or regulated under this Act or anything the dealing with which is governed or regulated under this Act;
(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;
(d) entering any place that the provincial officer reasonably believes is likely to contain documents related to,
(i) an activity or undertaking that is, or is required to be the subject of a permit, licence, approval, environmental compliance approval, certificate of property use, renewable energy approval, program approval, agreement or order under this Act,
(ii) an activity that is or is required to be registered under Part II.2,
(ii.1) an activity or undertaking that is exempted by a regulation from any requirement to have a permit, licence, environmental compliance approval or renewable energy approval under this Act that is regulated by the provisions of the regulation, or
(iii) the discharge of a contaminant into the natural environment;
(e) entering any place that the provincial officer reasonably believes,
(i) is, or is required to be, subject to or referred to in a permit, licence, approval, environmental compliance approval, certificate of property use, renewable energy approval, program approval, agreement or order under this Act,
(ii) is or is required to be subject to or referred to in a registration under Part II.2, or
(iii) is subject to or referred to in a regulation that provides for an exemption from any requirement to have a permit, licence, environmental compliance approval or renewable energy approval under this Act where the regulation includes provisions that regulate the place;
(e.1) entering any property for which a record of site condition has been submitted for filing or has been filed in the Environmental Site Registry established under section 168.3 for
