Branch v. Her Majesty the Queen in Right of Ontario as Represented by the Minister of the Environment et al. [Indexed as: Branch v. Ontario (Minister of the Environment)]
93 O.R. (3d) 665
Ontario Superior Court of Justice,
Divisional Court,
Wilson, Swinton and Bellamy JJ.
January 7, 2009
Environmental law -- Offences -- Investigation -- Section 163.1(2) of Environmental Protection Act not conferring authority on justice of the peace to order third party to submit to interview by investigator and to produce documents -- Environmental Protection Act, R.S.O. 1990, c. E.19, s. 163.1(2).
In the course of investigating a fire at a hazardous waste warehouse, an investigator with the Investigations and Enforcement Branch of the Ministry of the Environment sought to interview B, the manager of the facility. B, who was not the subject of the investigation, declined to be interviewed. The investigator applied to a justice of the peace for an order under s. 163.1(2) of the Environmental Protection Act compelling B to submit to an interview and to produce documents. The order was granted. B brought an application for judicial review of that decision.
Held, the application should be granted.
Section 163.1(2) of the Act does not confer authority on a justice of the peace to order a third party to submit to an interview and to produce documents.
APPLICATION for judicial review of an order compelling the applicant to submit to an interview and to produce documents.
Cases referred to R. v. Inco Ltd. (2001), 54 O.R. (3d) 495, [2001] O.J. No. 2098, 146 O.A.C. 66, 155 C.C.C. (3d) 383, 41 C.E.L.R. (N.S.) 9, 83 C.R.R. (2d) 189, 50 W.C.B. (2d) 225 (C.A.), consd R. v. Morrison, [2006] O.J. No. 1889, 141 C.R.R. (2d) 219, 69 W.C.B. (2d) 517 (S.C.J.), distd [page666] Other cases referred to Morguard Properties Ltd. v. Winnipeg (City), [1993] 2 S.C.R. 493, [1983] S.C.J. No. 84, 3 D.L.R. (4th) 1, 50 N.R. 264, [1984] 2 W.W.R. 97, J.E. 84-97, 25 Man. R. (2d) 302, 6 Admin. L.R. 206, 24 M.P.L.R. 219, 23 A.C.W.S. (2d) 99; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, 125 D.L.R. (4th) 385, 183 N.R. 325, J.E. 95-1497, 82 O.A.C. 243, 99 C.C.C. (3d) 97, 17 C.E.L.R. (N.S.) 129, 41 C.R. (4th) 147, 30 C.R.R. (2d) 252, 27 W.C.B. (2d) 485; R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 2005 SCC 76, 260 D.L.R. (4th) 411, 342 N.R. 259, [2006] 4 W.W.R. 605, J.E. 2006-62, 376 A.R. 1, 219 B.C.A.C. 1, 49 B.C.L.R. (4th) 1, 202 C.C.C. (3d) 449, 33 C.R. (6th) 215, 136 C.R.R. (2d) 121, 67 W.C.B. (2d) 809, EYB 2005-98899; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 2000 SCC 31, 185 D.L.R. (4th) 577, 254 N.R. 201, [2000] 10 W.W.R. 1, J.E. 2000-1234, 82 Alta. L.R. (3d) 1, 261 A.R. 201, 144 C.C.C. (3d) 385, 34 C.R. (5th) 1, 97 A.C.W.S. (3d) 64, 46 W.C.B. (2d) 450; Rizzo & Rizzo Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006
Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Environmental Protection Act, R.S.O. 1990, c. E.19, ss. 3(1), 156 [as am.], (2)(g) [as am.], (i) [as am.], 163.1 Health Professions Procedural Code [Sch. 2 to the Regulated Health Professions Act, 1991], s. 76(1) Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 56 [as am.] Ontario Water Resources Act, R.S.O. 1990, c. O.40 Public Inquiries Act, R.S.O. 1990, c. P.41, s. 7(1) Regulated Health Professions Act, 1991, S.O 1991, c. 18 Securities Act, R.S.O. 1990, c. S.5, ss. 11-18, 13(1)
Authorities referred to Driedger, Elmer, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 62 (1 December, 1998)
Frank Addario and Jonathan Dawe, for applicant. Shannon Chace and Zachary Green, for respondents.
The judgment of the court was delivered by
SWINTON J.: -- Overview
[1] The applicant, Michael Branch, has brought this application for judicial review of the order of Justice of the Peace David Brown dated August 26, 2008, requiring him to attend before an investigator of the Investigations and Enforcement Branch of the [page667] Ministry of the Environment ("MOE") to submit to interrogation and to produce documents. At issue in this application is the authority of the justice of the peace to make such an order pursuant to s. 163.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19 (the "EPA"). If there is such authority, the applicant challenges the constitutionality of the power and its exercise in this case.
Factual Background
[2] On February 19, 2007, a serious fire broke out in the hazardous waste warehouse of Clean Harbours Canada Inc. ("CHC") in Thorold, Ontario after an explosion. The facility was being used to process waste lithium, principally from old electronic equipment batteries. Lithium is a highly reactive substance that will ignite and explode on contact with water. Fire investigators were unable to determine the cause of the fire.
[3] The respondent William Nelson is an investigator with the Investigations and Enforcement Branch ("IEB") of the MOE. He began interviewing witnesses about the fire in March 2008. On July 7, 2008, he asked for an interview with the applicant, Michael Branch, the manager of CHC's Thorold facility, stating that Mr. Branch was not the subject of the investigation. After consulting counsel, Mr. Branch declined to be interviewed.
[4] On August 20, 2008, Mr. Nelson applied to Justice of the Peace Brown for an order under s. 163.1(2) of the EPA compelling Mr. Branch to submit to an interview with the IEB and to produce documents. The order was made August 26, 2008, leading to this application for judicial review.
The Issues
[5] The primary issue in this application is the proper interpretation of s. 163.1(2) of the EPA. If the section confers the powers exercised by the justice of the peace, the constitutionality of the provision is in issue, as the applicant submits that the legislation and the order made violate s. 7 of the Canadian Charter of Rights and Freedoms, the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.
The Interpretation of s. 163.1(2) of the EPA
[6] Subsection 163.1(2) of the EPA states:
163.1(2) On application without notice, a justice may issue an order in writing authorizing a provincial officer, subject to this section, to use any device, investigative technique or procedure or to do any thing described in [page668] the order if the justice is satisfied by evidence under oath that there are reasonable grounds to believe that an offence against this Act has been or will be committed and that information concerning the offence will be obtained through the use of the device, technique or procedure or the doing of the thing.
[7] "Device" is defined in s. 163.1(1) to mean:
a substance or tracking device that, when placed or installed in or on any place, land or thing, may be used to help ascertain, by electronic or other means, the origin, identity or location of anything.
[8] The section contains certain limitations. For example, an order must not authorize the interception of any private communication, and no device, technique or procedure shall be used to intercept a private communication (s. 163.1(3) and (4)). Pursuant to s. 163.1(7), an order made under this section is valid for 60 days or such shorter period as may be specified in the order.
[9] In interpreting s. 163.1(2), a court must use the approach to statutory interpretation set out by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, quoting Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at para. 21:
Today there is only one principle or approach, namely, 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.
[10] The applicant submits that if this approach to statutory interpretation is applied, one must conclude that s. 163.1(2) does not confer the power to compel witnesses to speak to an investigator who has reasonable grounds to believe that an offence has been committed. The respondent MOE submits that the language does support such an authority, especially given the purpose of the EPA. As well, the respondent relies on an obiter statement of the Ontario Court of Appeal in R. v. Inco Ltd. (2001), 54 O.R. (3d) 495, [2001] O.J. No. 2098, 155 C.C.C. (3d) 383 (C.A.) to support its interpretation.
[11] If one starts with the grammatical and ordinary sense of s. 163.1(2), the wording does not appear to give a justice of the peace the jurisdiction to make orders directed at third parties. Rather, s. 163.1(2) allows a justice to make an order "authorizing a provincial officer . . . to use any device, investigative technique or procedure to do any thing prescribed in the order". The order enhances the legal authority of the named officer, permitting him or her to do things that would otherwise be unlawful. It does not confer a power to compel a third party to appear and answer questions or produce documents. [page669]
[12] The respondent submits that the questioning of persons falls within the words "investigative technique". While I agree that questioning potential witnesses is perhaps the most basic investigative technique, an investigator has that power without the need for an order from a justice of the peace. The question in this application for judicial review is whether a justice of the peace can compel answers to questions by witnesses in a provision which deals with the grant of authority to investigators to use an "investigative technique". That is not obvious from the words of the provision.
[13] The language of other subsections of s. 163.1 suggests, as well, that the purpose of s. 163.1(2) is to enhance the authority of MOE investigators. Subsections 163.1(1), (3), (4) and (6) deal specifically with technological "devices". They do not deal with the compulsion of third parties, and they provide safeguards for private communications. Furthermore, the fact that the order is valid for a limited time suggests that the provision, like a wiretap authorization or search warrant, is meant to authorize the investigator to carry out certain activities, not compel activity by a third party.
[14] This conclusion is reinforced when one contrasts the language of s. 163.1(2) against the array of Ontario regulatory statutes dealing with the power to compel answers from witnesses. In addition, the legislative history of the provision suggests that its purpose was not to compel answers from third parties.
[15] Ontario has enacted many regulatory statutes that clearly compel answers to the questions of regulatory authorities. It is noteworthy that the power to compel answers is set out explicitly in each statute, and the vast majority of them expressly allow the compelled witness to claim privilege. Most statutes also provide express protection against self- incrimination.
[16] Schedule C of the applicant's factum lists the large number of Ontario statutes that compel answers to questioning by regulatory authorities. There are two standard drafting techniques found in these statutes. Some, such as s. 76(1) of the Health Professions Procedural Code (being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18), give the regulatory investigator the powers of a Commission under the Public Inquiries Act, R.S.O. 1990, c. P.41 ("PIA"). These powers include the ability to summon a witness to answer questions and to produce documents (s. 7(1) of the PIA) and to refer non-compliant witnesses to the Divisional Court for contempt proceedings.
[17] The second drafting technique, found in ss. 11 to 18 of the Securities Act, R.S.O. 1990, c. S.5 among others, gives the [page670] investigator the powers of a civil court. For example, s. 13(1) of the Securities Act provides,
13(1) A person making an investigation or examination under section 11 or 12 has the same power to summon and enforce the attendance of any person and to compel him or her to testify on oath or otherwise, and to summon and compel any person or company to produce documents and other things, as is vested in the Superior Court of Justice for the trial of civil actions, and the refusal of a person to attend or to answer questions or of a person or company to produce such documents or other things as are in his, her or its custody or possession makes the person or company liable to be committed for contempt by the Superior Court of Justice as if in breach of an order of that court.
[18] In contrast, s. 163.1(2) of the EPA does not contain language explicitly compelling witnesses to speak to regulatory investigators, nor does it provide protection for privilege or protection against self-incrimination. The absence of such language in s. 163.1(2), given the large number of statutes dealing expressly with compulsion of witnesses, suggests that the legislature did not intend to include powers of compulsion in s. 163.1(2).
[19] Furthermore, legislative history suggests that the legislature did not intend to confer a power to compel witnesses in s. 163.1(2). Section 163.1 was added to the EPA in 1998 as part of Bill 82. During the legislative debates, the bill's new investigative powers were described as giving the MOE investigators access to use new surveillance and tracking techniques in order to combat illegal waste dumping. For example, when the Environment Minister, the Hon. Norman W. Sterling, introduced Bill 82 for second reading, he stated (December 1, 1998):
I want to talk a little bit before I sit down about one of the great parts of this act to improve our ability in terms of investigation for surveillance. This act allowed us to go to the court first to get permission to install tracking devices on vehicles that we suspect of offences against our environmental laws. At the present time, the only way that we can follow a particular truck is by putting a huge amount of resources. We may have to put four or five cars in order to follow a particular illegal waste hauler. By putting an electronic device on it, we can save a lot of our resources so that we can do even more than we are at the present time.
Another new, modern technique which again would be allowed through the use of a court order would be to plant a particular substance in a load of waste and you'd be able to follow that as you would fingerprint. You could tell where that load of waste was dumped or left or whatever. What this act really does is bring us into the 20th century and into the next century, the 21st century, in terms of the enforcement tools which my officers will be able to use.
[20] Legislative debates are admissible as evidence of the intent or purpose of the legislature in enacting the legislation, although a court must be mindful of the limited reliability and weight of Hansard evidence (Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 144 C.C.C. (3d) 385, at para. 17). [page671] Here, the debates reinforce the view that the purpose of the amendment was to expand the tools available to investigators, rather than to compel witnesses to respond to questioning.
[21] The applicant also relies on the MOE's initial, restricted interpretation of s. 163.1(2) to support his position. I would not give weight to this argument, as the interpretation placed on a statute by the regulator does not assist a court in interpreting the language of the legislation.
[22] The respondent MOE submits that the legislature intended a broad set of powers for investigators under s. 163.1(2) in order to carry out the important purpose of the EPA -- namely, to provide for the protection and conservation of the natural environment (EPA, s. 3(1)). Therefore, the MOE argues, "investigative technique or procedure" should be interpreted broadly.
[23] The MOE relies on the words of the Supreme Court of Canada in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, where the court stated that legislators had taken a broad and general approach to the definition of prohibitions on pollution. The court continued (at p. 1068 S.C.R.):
Such an approach is hardly surprising in the field of environmental protection, given that the nature of the environment (its complexity, and the wide range of activities which might cause harm to it) is not conducive to precise codification.
[24] This passage does not assist us in the interpretation of the language of the EPA provisions dealing with the powers of investigators. The Supreme Court there was dealing with the definition of pollution offences in the context of a Charter challenge based on vagueness and overbreadth.
[25] There can be no doubt about the importance of effective legislation to protect the environment. However, that does not lead to the conclusion that the legislature intended to provide IEB investigators with access to the power to compel answers from witnesses at the stage where investigators have reasonable grounds to believe that an offence has been committed.
[26] In contrast to s. 163.1, s. 156 of the EPA allows MOE abatement officers to exercise various coercive powers when they conduct inspections, including requiring the production of documents and making reasonable inquiries of any person, orally or in writing (s. 156(2)(g) and (i)). In Inco, supra, the Court of Appeal held that these inspection powers could not be used after the MOE has reasonable grounds to believe that an offence has been committed (at paras. 20-38).
[27] Unlike other regulatory statutes described earlier in these reasons, s. 163.1 of the EPA does not expressly provide for [page672] regulatory compulsion after reasonable grounds have been established. While the power to compel witnesses to answer questions and to produce documents is an effective investigative tool, it is also intrusive and raises concerns about the principle against self-incrimination, one of the principles of fundamental justice in s. 7 of the Charter, as well as the common-law right to silence.
[28] While the Charter permits a legislature to include appropriately tailored statutory compulsion powers in regulatory statutes, courts should be reluctant to read such powers into a statute that does not provide them expressly. As La Forest J. stated in Morguard Properties Ltd. v. Winnipeg (City), [1983] 2 S.C.R. 493, [1983] S.C.J. No. 84, 3 D.L.R. (4th) 1, at p. 509 S.C.R., p. 13 D.L.R.:
In more modern terminology the courts require that, in order to adversely affect a citizen's right, whether as a taxpayer or otherwise, the Legislature must do so expressly. Truncation of such rights may be legislatively unintended or even accidental, but the courts must look for express language in the statute before concluding that these rights have been reduced. This principle of construction becomes even more important and more generally operative in modern times because the Legislature is guided and assisted by a well-staffed and ordinarily very articulate Executive. The resources at hand in the preparation and enactment of legislation are such that a court must be slow to presume oversight or inarticulate intentions when the rights of the citizen are involved. The Legislature has complete control of the process of legislation, and when it has not for any reason clearly expressed itself, it has all the resources available to correct that inadequacy of expression. This is more true today than ever before in our history of parliamentary rule.
[29] This brings me to the obiter comments of McMurty C.J.O. in Inco, supra, which suggest that s. 163.1(2) of the EPA does give the power to compel witnesses to answer questions. The Inco case dealt with an MOE investigation in 1994, prior to the enactment of s. 163.1 of the EPA. IEB investigators compelled three employees of Inco to make statements by threatening them with charges of obstruction of justice. Inco was subsequently charged with offences under the Ontario Water Resources Act, R.S.O. 1990, c. O.40 ("OWRA") and convicted at trial.
[30] On appeal, Inco argued that the IEB investigators had no power to compel the employees to speak during the investigation. The Crown argued that the powers of compulsion could be found in the OWRA inspection power, which is the equivalent of s. 156 of the EPA. The Court of Appeal held that these inspection powers could not be used once the MOE investigators had reasonable grounds to believe an offence had been committed.
[31] The appeal was decided in 2001. McMurtry C.J.O. observed in obiter that the situation would be different because of the 1998 amendments in Bill 82. He stated (at paras. 37-38): [page673]
I am therefore of the view that under the legislative scheme as it existed at the time of this incident, the existence of reasonable and probable grounds would have limited the investigative techniques available to provincial officers. It appears that this view was held by the Legislature as amendments were passed. In order to strengthen the enforcement powers under environmental legislation, the OWRA and the EPA were both amended effective February 1, 1999. Among the amendments was the addition of the following provision, which is now found in s. 22.1(2) of the OWRA and s. 163.1(2) of the EPA:
On application without notice, a justice may issue an order in writing authorizing a provincial officer, subject to this section, to use any device, investigative technique or procedure or to do any thing described in the order if the justice is satisfied by evidence under oath that there are reasonable grounds to believe that an offence against this Act has been or will be committed and that information concerning the offence will be obtained through the use of the device, technique or procedure or the doing of the thing.
An IEB officer who has reasonable and probable grounds to believe that an environmental offence has been committed can now apply for judicial authorization to conduct questioning sessions of the type that were authorized by the former s. 15(1) (n) of the OWRA [now s. 15(2)(i)] under the "investigative technique" umbrella.
[32] The correct interpretation of the 1998 amendments was not an issue before the court in the Inco appeal, and these comments had no bearing on the outcome. Counsel for the respondent in the current application concedes that the comments were obiter, but suggests the comments are so close to the core of the decision as to be binding on this court.
[33] The weight to be given to obiter comments in a judgment varies. In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 202 C.C.C. (3d) 449, Binnie J. stated (at para. 57):
All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding" in the sense the Sellars principle in its most exaggerated form would have it.
[34] The comments on s. 163.1(2) in Inco were not dispositive to the ratio decidendi, nor is it obvious that they were intended to set out the definitive interpretation of the new amendment. At most, paras. 37 and 38 provide a commentary on the change to the legislation. I would not characterize them as so close to the core of the decision as to be binding.
[35] With respect, the comments are not persuasive to the disposition of this application. Counsel for the applicant has provided this court with the facta that were before the Court of [page674] Appeal in Inco. They do not contain argument on the proper interpretation of s. 163.1. One finds in Inco's factum a reference to the amendments to supplement IEB officers' powers to compulsorily gather evidence when investigating an offence. The factum observes that "officers now have the power to use 'investigative techniques' as long as they are authorized by a justice" (at para. 31). The factum does not specifically address whether the new provision included testimonial or documentary compulsion.
[36] Moreover, the Court of Appeal in Inco did not engage in a detailed analysis of the words of s. 163.1, nor consider those words in the larger statutory context or in light of the legislative debates. Therefore, in my view, this court is not bound by the statements in Inco concerning s. 163.1, as they do not reflect a close examination of the words of the provision in context.
[37] The applicant relied on R. v. Morrison, [2006] O.J. No. 1889, 141 C.R.R. (2d) 219 (S.C.J.), in which search warrants compelling the questioning of witnesses were quashed on the basis that they were not authorized by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 56. The trial judge held that the provision permitting the inspector to make inquiries of any person while executing a search warrant under the Act was limited to discrete questions arising during the execution of the warrant as required to render the execution effective.
[38] Morrison deals with different statutory language and powers complementary to the execution of a warrant. It does not assist in the interpretation of the EPA, which deals with the issuance of orders, not warrants.
Conclusion
[39] The words of s. 163.1(2) of the EPA do not confer authority on a justice of the peace to order a person to appear to answer questions and to produce documents. Therefore, I would grant the application for judicial review and quash the order made by Justice of the Peace Brown on August 26, 2008.
[40] Given my conclusions on the issue of statutory interpretation, it is not necessary to discuss the Charter issues.
[41] As agreed by the parties, costs to the applicant are fixed in the amount of $15,000 payable by the respondent MOE.
Application granted.