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 obstruction."
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 company.
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