Sometimes, relationships between the regulated and the regulator
go way off the rails, as happened with Richard and Jeffrey Clare, a
father and son, who operate a large cattle farming operation in
Burford, Ontario. The end result for the Clares was convictions for
hindering or obstructing a provincial offences officer, contrary to
the Nutrient Management Act (NMA). Richard Clare was fined $8,000
and ordered to comply with a period of probation for eight months.
Jeffrey Clare was fined $1,000. On appeal, the
convictions were upheld.
In June 2010, two officers from the Ministry of Environment were
conducting inspections of the Clares' operations under the NMA.
They did so unannounced. At the first property inspected, the
Clares were not present. As the inspectors were leaving, they saw
Jeffrey Clare and advised him they would be attending another
nearby Clare property for an inspection.
It was at this property that Jeffrey and Richard Clare pulled up
and parked directly in front of the inspectors' vehicle,
blocking their exit. Richard Clare demanded to know the authority
under which the inspectors were acting. One of the inspectors
explained that the NMA granted them authority for the inspection.
This did not satisfy Mr. Clare: he advised them they were
trespassers, and refused to let them leave. Having reached an
impasse, one of the inspectors called the police. Upon arrival, the
police confirmed that the inspectors were acting lawfully. At this
juncture, the court found that Richard Clare stated he had no
respect for the Ministry inspectors, and that if they came back he
would use a payloader to flip their vehicle into a ditch. Further,
the court ruled that Richard Clare stated something to the effect
of if he had access to a gun, he would shoot the inspectors.
Despite these remarkable set of facts, the Clares appealed their
convictions on two grounds. First they argued that they did not in
fact prevent the officers from leaving the property – they
suggested the officers had a way out despite their parked vehicle.
The appeal court found no reason to disturb the trial judge's
finding of fact that the officers could not leave, but in any
event, the court noted "it is not necessary that the act
completely frustrate the officers. Any act that makes it more
difficult for them to carry out their duties is an
Second, the Clares argued they had exercised due diligence. A
due diligence defence requires the accused to demonstrate on a
balance of probabilities that they reasonably believed in a state
of facts which, if true, would render the act or omission innocent,
or they took all reasonable steps in the circumstances to avoid the
event. The Clares argued they believed the inspectors were
trespassing based on a prior pattern of inspections conducted on
their properties, in which the Ministry provided advance notice and
made arrangements to conduct inspections at a mutually agreeable
time. In addition to the fact that the evidence did not actually
support this assertion, the court affirmed well settled law that an
error of law on the part of the Clares, absent officially induced
error, could not constitute a due diligence defence. In any event,
they were told by the inspector what the law was, and chose to
ignore or disbelieve it.
For the regulated community, it is important to understand that
most environmental statutes authorize inspections on private
property. These inspections need not be announced or pre-arranged.
Investigations – in which officers are attempting to gather
evidence for a prosecution – are another story. In those
cases, investigators require warrants, except in exigent
circumstances, to enter onto a property.
In the event your company is subject to regulatory inspections,
be sure to ask for identification and the purpose of the visit if
officers arrive unannounced; or even if it is a planned visit, be
sure to understand what the purpose of the visit is. You can find
more detail about inspections and your rights and obligations on
our website here. Whatever you do, don't hinder
officers in their duties, and certainly don't threaten bodily
harm. The end result will surely not be a good one for you or your
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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