Вы находитесь на странице: 1из 7

N THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v.

Hicks, 2012 NSPC 44 Date: 20120601 Docket: 2385061 Registry: Amherst

Between:

Her Majesty the Queen

v. Garth Hicks

Judge: Heard: Written decision: Charge:

The Honourable Judge Paul B. Scovil 12 April 2012 in Amherst, Nova Scotia 31 May 2012 THAT HE on or about the 27th day of May, 2011 at or near 2445 Athol Road, Springhill, County of Cumberland, Nova Scotia did unlawfully commit the offence of hindering or obstructing inspector/administrator, not allowing an inspector to conduct an inspection in accordance with 119(1)(c), contrary to section 158(d) of the Environment Act. Mary Ellen Nurse, for the crown Douglas Shatford Q.C., for the defence

Counsel:

Page: 2

By the Court: [1] English lore, attacks from the Clan Campbell, just where do we derive the phrase, A mans home is his Castle and why do we still need to go back to this doctrine in the 21st century? What is known as the Castle Doctrine is often cited from Semaynes Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194 but is thought to have its roots in ancient Roman Law. In any event requirement of oversight of the states ability to breach our own castles sacred grounds continues to garner judicial scrutiny, and properly so. This is just such a case. [2] Neighbours have always been of concern for castles and so it was when a neighbour of Garth Hicks called the Department of Environment to complain of refuse or other material being burned in a barrel located in Mr. Hicks back yard. Inspector Christopher OConnell of the Nova Scotia Department of Environment was the standby officer in Truro, Nova Scotia who took the call. The unidentified caller complained of garbage being burned in a burn barrel on Athol Road in the backyard of Mr. Hicks. The inspector logged the call and forwarded it to the Amherst office for processing. [3] Inspector Tanya MacKenzie in the Amherst office of the Department of Environment received the forwarded complaint on May 23, 2011 and called the complainant to follow up. She spoke to the individual again, taking down details of the concern that garbage was being burned in a burn barrel. As did Sheriffs in the 1600's, Inspector MacKenzie saddled up and drove her Hyundai Tuscan out to inspect at Mr. Hicks castle located on the Athol Road, Springhill, Nova Scotia. She armed herself with the belief that she had a right to inspect such property under Section 119 of the Environment Act. 1994-95, c.1 of Nova Scotia. She had a badge to identify herself as well as the uniform which identified her as an Environment Inspector. [4] Mr. Hicks was outside cleaning his moat or some other domestic endeavour when Inspector MacKenzie arrived. She identified herself and was able to identify the accused during a brief conversation. She then specifically asked Mr. Hicks his full name and date of birth. He refused to answer. I take it she explained why she was there and that she wanted to inspect his property due to the complaint. Mr. Hicks became confrontational. She was able to observe what she thought was a burn barrel in the yard and she argued with Mr. Hicks regarding her right to enter the premises to inspect. Mr. Hicks then became very confrontational. He called

Page: 3

Inspector MacKenzie a liar and demanded that she vacate the property. As the inspector was without supporting troops, and as she felt the situation was escalating to a point where she feared for her safety, she left. [5] Inspector MacInnis later charged the accused with hindering or obstructing an inspector under section 158(d) of the Environment Act. [6] Mr. Hicks argues three different issues. First that his conduct did not amount to hindering or obstructing the inspector as required to make out a charge under the Environment Act. Secondly that the inspector had no right of entry on the property of Mr. Hicks without a warrant. As to the last argument the accused says that with no lawful reason to be on his property he had a right to expel the trespasser and cites section 41 of the Criminal Code of Canada. [7] The section in question here of the Environment Act states as follows:
158 A person who (d) hinders or obstructs an inspector or administrator who is exercising powers or carrying out duties, or attempting to do so, pursuant to this Act; is guilty of an offence. 1994-95, c. 1, s. 158; 2006, c. 30, s. 45.

[8] The terms hinder and obstruction are undefined under the Environment Act. The question is whether the conduct of Mr. Hicks hindered or obstructed the inspector with his actions on the date in question. [9] Blacks Law Dictionary 5th Ed. West defines the term hinder as obstruct or impede. Blacks further defines obstruct as:
to hinder or prevent from progress, check, stop, also to retard the progress of, to make difficult and slow, to block up; to interpose obstacles, to render impassable; to fill with barriers or impediments, as to obstruct a road or way.

Page: 4

[10] The concept of obstruction under provincial legislation was also considered by the New Brunswick Provincial Court in R. v. Irving Oil Ltd. [2001] N.B.J. No. 448. There Irving Oil was charged under section 33(a) of the Occupational Health and Safety Act R.S.N.B. 1973. An Irving employee was alleged to have obstructed an officer by hampering the officers ability to examine and inspect a cylinder that had been locked in a box which both Irving and inspectors had access to. Irving added a lock which the inspector had no key to. It was held that the Crown has to show some intentional act of interference by either a positive act or omission. The Court went on to say at paragraph 29:
Further, it is the purpose of the obstruction, not its result, which goes to the offence of obstructing a peace officer in the execution of his duties. The fact that the positive act or omission did not prevent the officer from exercising or completing his duty is not a defence. (see R. v. Tortolano et al (1975) 28 C.C.C. (2d) 562 (Ont. C.A.))

[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.

[12] The heart of this matter is Inspector MacKenzies lawful authority to enter on the premises of Mr. Hicks. The right of entry and inspection of places under the Environment Act is contained in section 119. That sections sets out as follows:
Right of entry and inspection 119 (1) For the purpose of the administration of this Act, an inspector, subject to Sections 22 and 120, may, at any reasonable time, (c) enter and inspect any place in or from which the inspector has reasonable grounds to believe a substance is being, has been or may be released into the environment.

Page: 5

Section 22 simply sets out that inspectors must show identification cards on entry, however section 120 is relevant to the case before me. It states:
Private dwelling place 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. 1994-95, c. 1, s. 120.

[13] It would appear that Inspector MacKenzie had the authority to enter any place where she had reasonable grounds to believe a substance was, or had, been released into the environment. Burning garbage in a burn barrel would be just such a substance. Equally clear is the inspectors need for a warrant under Section 120 to enter and inspect any private dwelling place unless the occupant has given permission to enter. This leaves us asking, what is a place and further what is a private dwelling place. Where the castles yard and driveway fit in these questions are important considerations for the Castle Keep and the Sheriff who wants entry. [14] What is a private dwelling place is undefined by the Environment Act. The act does set out what a place is.
Interpretation 3 In this Act, (an) "place" includes any land, building, structure, machine, aircraft, vehicle or vessel;

Dwelling is not defined in either the Environment Act nor the Interpretation Act. The Criminal Code does provide a definition of dwelling house under Section 2.

Page: 6 dwelling-house dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes (a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and (b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;

[15] Defence counsel has pointed out in their submission to this court that the definition in the Environment Act is broad and when read in conjunction with the words private dwelling place broadens still the concept of a dwelling as envisaged under Section 2 of the Criminal Code. This makes sense both in law and logic and it is a concept with which this court agrees. I find therefore that private dwelling place under section 120 means a residence, temporary or permanent, to which the public does not have access and includes the lands and structures attached thereto. [16] Given what has been said in the preceding paragraph, Inspector MacKenzie required either permission from Mr. Hicks, a warrant or an order obtained under Section 121 of the Environment Act in order to enter on Mr. Hicks property to conduct an inspection. She had none of these things. [17] Mr. Hicks had the right to deny entrance to his property by the Inspector on the day in question. He used no more force than necessary in the incident. While he hindered and obstructed Inspector MacKenzie he was in his lawful right to do so. The question of the interrelationship between Section 41 of the Criminal Code relating to trespassers and the relevant portions of the Environment Act was raised as an issue. As Mr. Hicks was not charged under the Criminal Code with any offence it has no real need to be discussed here. As Inspector MacKenzie was not exercising any lawful powers under the Act nor carrying out her proper duties the charge under 158(d) fails and I acquit Mr. Hicks thereof. [18] The castles of Cumberland County remain sacrosanct against the powers of the Sovereign, at least in this matter, Sheriffs continue to require

Page: 7

proper authorization to require the lowering of the drawbridge and the Lords and Ladies of the Dominion can rest easy. It is likely a good idea that they take care as to what they may burn in the courtyard.

PCJ

Вам также может понравиться