N THE PROVINCIAL COURT OF NOVA SCOTIACitation: R. v. Hicks, 2012 NSPC 44

Date: 20120601Docket: 2385061

Registry: Amherst

Between: Her Majesty the Queen

v.

Garth Hicks

Judge: The Honourable Judge Paul B. Scovil

Heard: 12 April 2012 in Amherst, Nova Scotia

Written decision: 31 May 2012

Charge: THAT HE on or about the 27th day of May, 2011 ator near 2445 Athol Road, Springhill, County ofCumberland, Nova Scotia did unlawfully committhe offence of hindering or obstructinginspector/administrator, not allowing an inspectorto conduct an inspection in accordance with119(1)(c), contrary to section 158(d) of theEnvironment Act.

Counsel: Mary Ellen Nurse, for the crownDouglas Shatford Q.C., for the defence

Page: 2

By the Court:

[1] English lore, attacks from the Clan Campbell, just where do we derive thephrase, “ A man’s home is his Castle” and why do we still need to go back to thisdoctrine in the 21st century? What is known as the “Castle Doctrine” is often citedfrom Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194 but is thought to haveits roots in ancient Roman Law. In any event requirement of oversight of thestate’s ability to breach our own castle’s sacred grounds continues to garnerjudicial scrutiny, and properly so. This is just such a case.

[2] Neighbours have always been of concern for castles and so it was when aneighbour of Garth Hicks called the Department of Environment to complain ofrefuse or other material being burned in a barrel located in Mr. Hicks’ back yard.Inspector Christopher O’Connell of the Nova Scotia Department of Environmentwas the standby officer in Truro, Nova Scotia who took the call. The unidentifiedcaller complained of garbage being burned in a burn barrel on Athol Road in thebackyard of Mr. Hicks. The inspector logged the call and forwarded it to theAmherst office for processing.

[3] Inspector Tanya MacKenzie in the Amherst office of the Department ofEnvironment received the forwarded complaint on May 23, 2011 and called thecomplainant to follow up. She spoke to the individual again, taking down detailsof the concern that garbage was being burned in a burn barrel. As did Sheriffs inthe 1600's, Inspector MacKenzie saddled up and drove her Hyundai Tuscan out toinspect 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 propertyunder Section 119 of the Environment Act. 1994-95, c.1 of Nova Scotia. She had abadge to identify herself as well as the uniform which identified her as anEnvironment Inspector.

[4] Mr. Hicks was outside cleaning his moat or some other domestic endeavourwhen Inspector MacKenzie arrived. She identified herself and was able to identifythe accused during a brief conversation. She then specifically asked Mr. Hicks hisfull name and date of birth. He refused to answer. I take it she explained why shewas 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 aburn barrel in the yard and she argued with Mr. Hicks regarding her right to enterthe 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 theinspector was without supporting troops, and as she felt the situation wasescalating to a point where she feared for her safety, she left.

[5] Inspector MacInnis later charged the accused with hindering or obstructingan inspector under section 158(d) of the Environment Act.

[6] Mr. Hicks argues three different issues. First that his conduct did notamount to hindering or obstructing the inspector as required to make out a chargeunder the Environment Act. Secondly that the inspector had no right of entry onthe property of Mr. Hicks without a warrant. As to the last argument the accusedsays that with no lawful reason to be on his property he had a right to expel thetrespasser 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 isexercising 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 theEnvironment Act. The question is whether the conduct of Mr. Hicks hindered orobstructed the inspector with his actions on the date in question.

[9] Black’s Law Dictionary 5th Ed. West defines the term “hinder” as “obstructor impede”. Black’s further defines “obstruct” as:

to hinder or prevent from progress, check, stop, also to retard theprogress of, to make difficult and slow, to block up; to interposeobstacles, to render impassable; to fill with barriers orimpediments, as to obstruct a road or way.

Page: 4

[10] The concept of obstruction under provincial legislation was also consideredby 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 OccupationalHealth and Safety Act R.S.N.B. 1973. An Irving employee was alleged to haveobstructed an officer by hampering the officer’s ability to examine and inspect acylinder that had been locked in a box which both Irving and inspectors had accessto. Irving added a lock which the inspector had no key to. It was held that theCrown has to show some intentional act of interference by either a positive act oromission. The Court went on to say at paragraph 29:

Further, it is the purpose of the obstruction, not its result, whichgoes to the offence of obstructing a peace officer in the executionof his duties. The fact that the positive act or omission did notprevent the officer from exercising or completing his duty is not adefence. (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 delayedInspector MacKenzie in her attempt to inspect his premises. Provided theinspector had lawful authority to conduct such an inspection the actions ofMr. Hicks were those that would fall within the category of hindering andobstructing as envisaged under the Act. Mr. Hicks’ purpose in his action wasclearly to keep an inspection from occurring.

[12] The heart of this matter is Inspector MacKenzie’s lawful authority toenter on the premises of Mr. Hicks. The right of entry and inspection ofplaces under the Environment Act is contained in section 119. That sectionssets out as follows:

Right of entry and inspection

119 (1) For the purpose of the administration of this Act, aninspector, subject to Sections 22 and 120, may, at any reasonabletime,

(c) enter and inspect any place in or from which the inspector hasreasonable grounds to believe a substance is being, has been ormay be released into the environment.

Page: 5

Section 22 simply sets out that inspectors must show identification cards onentry, however section 120 is relevant to the case before me. It states:

Private dwelling place

120 Notwithstanding anything contained in this Act, an inspectormay not enter a private dwelling place or any part of a place that isdesigned to be used and is being used as a permanent or temporaryprivate 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, orunder the authority of a search warrant. 1994-95, c. 1, s. 120.

[13] It would appear that Inspector MacKenzie had the authority to enter anyplace where she had reasonable grounds to believe a substance was, or had,been released into the environment. Burning garbage in a burn barrel wouldbe just such a substance. Equally clear is the inspector’s need for a warrantunder Section 120 to enter and inspect any “private dwelling place” unlessthe occupant has given permission to enter. This leaves us asking, “what is aplace” and further “what is a private dwelling place”. Where the castle’s yardand driveway fit in these questions are important considerations for the CastleKeep and the Sheriff who wants entry.

[14] What is a “private dwelling place” is undefined by the EnvironmentAct. 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 theInterpretation Act. The Criminal Code does provide a definition ofdwelling house under Section 2.

Page: 6

“dwelling-house”

“dwelling-house” means the whole or any part of a building orstructure that is kept or occupied as a permanent or temporaryresidence, and includes

(a) a building within the curtilage of a dwelling-house that is connected toit 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 ortemporary residence and that is being used as such a residence;

[15] Defence counsel has pointed out in their submission to this court thatthe definition in the Environment Act is broad and when read in conjunctionwith the words “private dwelling place” broadens still the concept of adwelling as envisaged under Section 2 of the Criminal Code. This makessense both in law and logic and it is a concept with which this court agrees. Ifind therefore that “private dwelling place” under section 120 means aresidence, temporary or permanent, to which the public does not have accessand includes the lands and structures attached thereto.

[16] Given what has been said in the preceding paragraph, InspectorMacKenzie required either permission from Mr. Hicks, a warrant or an orderobtained 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 Inspectoron 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 lawfulright to do so. The question of the interrelationship between Section 41 ofthe Criminal Code relating to trespassers and the relevant portions of theEnvironment Act was raised as an issue. As Mr. Hicks was not chargedunder the Criminal Code with any offence it has no real need to be discussedhere. As Inspector MacKenzie was not exercising any lawful powers underthe Act nor carrying out her proper duties the charge under 158(d) fails and Iacquit Mr. Hicks thereof.

[18] The castles of Cumberland County remain sacrosanct against thepowers 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 Lordsand Ladies of the Dominion can rest easy. It is likely a good idea that theytake care as to what they may burn in the courtyard.

PCJ