By Dianne Saxe, Ontario Environmental Lawyer
A Nova Scotia Department of the Environment Inspector attended at Mr. Hicks’ yard to investigate a complaint about air pollution from material burning in a barrel, contrary to the Environment Act (“Act”). Mr. Hicks was confrontational, refused to identify himself, and challenged her right to enter his yard. She left, fearing for her safety.
Mr. Hicks was charged with obstructing an environmental inspector. The Act authorizes inspectors to enter private property, but not a “private dwelling place”, except on consent or under an order or search warrant. The Act does not define “private dwelling place”, although “place” includes “any land, building, structure, machine, aircraft, vehicle or vessel”. “Dwelling house” is defined in the Criminal Code as “…the whole or any part of a building or structure that is kept or occupied as a permanent or temporary structure…”
The trialCourt (2012 NSPC 44) [enhanced version available to lexis.com subscribers],, and the first appeal court, both dismissed the charge, ruling that Mr. Hick’s yard and driveway were part of his “private dwelling place”, and so the inspector had no right to be there.
On July 22, the Nova Scotia Court of Appeal convicted Mr. Hicks. In light of the purpose and breadth of the Act (“to support and promote the protection, enhancement and prudent use of the environment”), the power to inspect does apply to the outdoor portions of private residential property. Otherwise, the Act’s objectives would often be defeated. Outdoors is precisely where toxic, noxious, dangerous or deleterious materials are typically found, not inside a dwelling place (meth labs and moonshine excepted). The court rejected his argument that allowing environmental inspectors to enter homeowner’s yards would “lead to an “open season” of provincial inspectors “leaping fences” to shut down family barbecues or cottage picnics” (para 48).
The bottom line – Mr. Hicks’ house (or tent or yurt or cottage) is a private dwelling place – but not his yard. The environmental inspector had the authority to enter the yard to inspect the burn barrel, without a search warrant, and he obstructed her effort to do so.
Reprinted with permission from the Environmental Law and Litigation Blog.
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