R. v. Hicks (G.T.),

• Jurisdiction: Nova Scotia
• Judge: Saunders, Farrar and Bryson, JJ.A.
• Neutral Citation: 2013 NSCA 89
• Subject Matter: POLLUTION CONTROL
• Citation: 2013 NSCA 89,(2013), 332 N.S.R.(2d) 284 (CA),332 NSR(2d) 284,(2013), 332 NSR(2d) 284 (CA),332 N.S.R.(2d) 284
• Date: 05 June 2013
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Hicks (G.T.) (2013), 332 N.S.R.(2d) 284 (CA);

    1052 A.P.R. 284

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JL.045

Her Majesty the Queen (appellant) v. Garth Thomas Hicks (respondent)

(CAC 409943; 2013 NSCA 89)

Indexed As: R. v. Hicks (G.T.)

Nova Scotia Court of Appeal

Saunders, Farrar and Bryson, JJ.A.

July 22, 2013.

Summary:

The accused was charged with hindering or obstructing an inspector under s. 158(d) of the Environment Act.

The Nova Scotia Provincial Court, in a decision reported at 317 N.S.R.(2d) 268; 1003 A.P.R. 268, acquitted the accused. The Crown appealed.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, dismissed the appeal. The Crown applied for leave to appeal, and if leave was granted, appealed.

The Nova Scotia Court of Appeal granted leave to appeal, allowed the appeal, overturned the decision of the Supreme Court, set aside the acquittal entered at trial, substituted a conviction, and remitted the case to the Provincial Court for sentencing.

Pollution Control - Topic 9015

Offences - General - Obstructing or hindering officer, agent, etc. - Inspector MacKenzie went to the accused's home to follow up on a complaint that the accused was burning garbage in a barrel - She identified herself and was able to identify the accused during a brief conversation - The accused refused to give his full name and date of birth - Inspector MacKenzie explained why she was there and that she wanted to inspect his property due to the complaint - The accused became confrontational - She was able to observe what she thought was a burn barrel in the yard and she argued with the accused regarding her right to enter the premises to inspect - The accused then became "very confrontational" - He called Inspector MacKenzie a liar and demanded that she vacate the property - As she feared for her safety, she left - The accused was charged with hindering or obstructing an inspector under s. 158(d) of the Environment Act - The trial judge acquitted the accused - Inspector MacKenzie required either permission from the accused, a warrant or an order obtained under s. 121 of the Act in order to enter on the accused's property to conduct an inspection - She had none of these things - The summary conviction appeal judge affirmed the acquittal - The Nova Scotia Court of Appeal substituted a conviction - "Both the trial judge and the [summary conviction appeal judge] erred in finding that the term 'private dwelling place' [in s. 120 of the Act] included more than [the accused's] 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." - The accused's outside yard was not a private dwelling place - Inspector MacKenzie had the authority to enter the accused's land to carry out her inspection of the burn barrel and she did not need the accused's permission or a court order to do so.

Cases Noticed:

R. v. Fitzpatrick (D.P.) (2006), 244 N.S.R.(2d) 304; 774 A.P.R. 304; 2006 NSCA 65, refd to. [para. 12].

R. v. Ord (J.J.) (2012), 324 N.S.R.(2d) 88; 1029 A.P.R. 88; 2012 NSCA 115, leave to appeal refused [2012] S.C.C.A. 537, refd to. [para. 12].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 14].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 14].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Keizer v. Slauenwhite (2012), 313 N.S.R.(2d) 344; 990 A.P.R. 344; 2012 NSCA 20, refd to. [para. 14].

MacDonald v. Mor-Town Developments Ltd. (2011), 305 N.S.R.(2d) 302; 966 A.P.R. 302; 2011 NSSC 281, revsd. (2012), 316 N.S.R.(2d) 183; 1002 A.P.R. 183; 2012 NSCA 35, refd to. [para. 14].

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 NSCA 44, refd to. [para. 19].

Comité paritaire de l'industrie de la chemise v. Potash et Sélection Milton, [1994] 2 S.C.R. 406; 168 N.R. 241; 61 Q.A.C. 241; 91 C.C.C.(3d) 315, refd to. [para. 38].

R. v. Bagnell (R.) (2004), 224 N.S.R.(2d) 20; 708 A.P.R. 20; 2004 NSPC 29, refd to. [para. 39].

Statutes Noticed:

Environment Act, S.N.S. 1994-95, c. 1, sect. 119(1) [para. 25]; sect. 120 [para. 26].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), generally [para. 21].

Counsel:

Kenneth W.F. Fiske, Q.C., for the appellant;

Douglas Shatford, Q.C., and Jeanne Sumbu (Articled Clerk), for the respondent.

This application and appeal were heard at Halifax, Nova Scotia, on June 5, 2013, by Saunders, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on July 22, 2013.