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
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 trial Court (2012 NSPC 44), 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.
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