COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Environment, Conservation and Parks) v.
    Henry of Pelham Inc., 2018 ONCA 999

DATE: 20181207

DOCKET: C64852

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

(Ministry of the Environment,
    Conservation and Parks)

Appellant

and

Henry of Pelham Inc.

Respondent

Jessica Rosenberg and Nicholas Adamson, for the
    appellant

Albert Engel, for the respondent

Megan Savard and James Foy, for the intervener the
    Criminal Lawyers Association

Heard: August 21, 2018

On appeal from the sentence imposed by Justice Joseph
    Nadel of the Ontario Court of Justice on October 24, 2017.

Huscroft J.A.:

OVERVIEW

[1]

The respondent corporation pleaded guilty to discharging or causing or
    permitting the discharge of a material into a watercourse or in any waters or
    on any shore or bank thereof or into or in any place, which said discharge may
    impair the quality of the water or any waters, contrary to s. 30(1) of the
Ontario
    Water Resources Act
,

R.S.O. 1990, c. O.40
(OWRA). The OWRA
    establishes a minimum fine of $25,000 for this offence. However, the trial
    justice fined the respondent a mere $600, invoking s. 59(2) of the
Provincial
    Offences Act,
R.S.O. 1990, c. P.33
(POA), to relieve the respondent from the minimum fine the OWRA required. The
    appeal judge increased the respondents fine to $5,000  a substantial
    increase, yet still a fraction of the minimum fine required by the OWRA.

[2]

The Crown appeals from this decision with leave of this court. A second
    appeal of a sentence is unusual, but this case has implications that extend
    well beyond the OWRA and the respondents offence. This is so because s. 59(2)
    of the POA applies to a wide range of public welfare legislation that prescribes
    minimum fines.

[3]

I have concluded that the appeal judge erred in exercising his
    discretion under s. 59(2) in a manner that undermines the purpose of the OWRA.
    As I will explain, the discretionary power set out in s. 59(2) must be applied
    with appropriate restraint, lest it undermine provincial legislative policy
    governing public welfare offences  a policy that emphasizes deterrence.

[4]

I would allow the appeal and vary the sentence imposed by the appeal
    judge by imposing the minimum fine of $25,000 set out in the OWRA.

BACKGROUND

[5]

The parties filed an agreed statement of facts, dated February 24, 2017,
    which I summarize below.

[6]

A St. Catharines resident, Mr. Ed Skala, called the Ministry of the
    Environment and Climate Change Pollution Hotline on November 7, 2014, reporting
    that one of the two ponds on his property had turned black. An aeration system
    he installed several years earlier had not been operational for approximately
    one year. A tributary of Richardson Creek, which connects to the pond, runs
    through a vineyard owned by the respondent winery.

[7]

On November 8, 2014, Ministry officers investigated and observed a black
    pond with a faint organic odour. The incoming water from the creek did not
    appear to have the blackish colour. On November 10, Ministry officers met with
    an officer/director of the respondent corporation, who indicated that the
    respondent had spread a mixture of cattle manure and grape pomace on the land
    for approximately two weeks, and that it had not been incorporated into the
    soil because of wet weather conditions. He speculated that the manure/pomace
    may have entered the creek through a tile drain.

[8]

That same day, the respondent retained AMEC Environmental to assess the
    situation and prepare an action plan at the request of the Ministry. The plan
    was submitted to the Ministry the following day. In addition, the respondent
    purchased a new pump for Mr. Skalas aerators and arranged for vacuum trucks to
    clean black organic matter from the entrance to the pond.

[9]

The observation of odour at the Skala pond on November 8, 2014 met the
    definition of deemed impairment under s. 1(3)(c) of the OWRA, which provides
    as follows:

1(3) For the purposes of this Act, the quality of
    water shall be deemed to be impaired by the discharge of material if the
    material or a derivative of the material enters or may enter the water,
    directly or indirectly, and,

(c) the material or derivative causes or may cause
    a degradation in the appearance, taste or odour of the water.

[10]

This
    supports the charge that, on November 8, 2014, the respondent breached s. 30(1)
    of the OWRA, which provides as follows:

30(1) Every person that discharges or causes or
    permits the discharge of any material of any kind into or in any waters or on
    any shore or bank thereof or into or in any place that may impair the quality
    of the water of any waters is guilty of an offence.

THE LEGISLATION

[11]

There
    are two relevant sentencing provisions for the purposes of this appeal. Section
    109 of the OWRA establishes a minimum and maximum fine for a breach of s. 30(1)
    by a corporation on a first conviction:

109(1) Subsections (2) and (3) apply to the following
    offences:

1. An offence under subsection 30(1).

(2) Every corporation convicted of an offence
    described in subsection (1) is liable, for each day or part of a day on which
    the offence occurs or continues, to a fine of,

(a) not less than $25,000 and not more than
    $6,000,000 on a first conviction.

[12]

The
    POA contemplates the establishment of minimum penalties in provincial
    legislation such as the OWRA, while s. 59(2) empowers trial judges to provide discretionary
    relief from such penalties in limited circumstances:

59(2) Although the provision that creates the penalty
    for an offence prescribes a minimum fine, where in the opinion of the court
    exceptional circumstances exist so that to impose the minimum fine would be
    unduly oppressive or otherwise not in the interests of justice, the court may
    impose a fine that is less than the minimum or suspend the sentence.

THE DECISIONS BELOW

The decision at trial

[13]

The
    Crown asked the trial justice to impose the statutory minimum fine of $25,000,
    set out under s. 109(2)(a) of the OWRA. The respondent sought a reduced fine of
    $300-$2,500, inviting the trial justice to exercise her discretion under s.
    59(2) of the POA.

[14]

The
    trial justice noted the Crowns option to lay charges under either Part I (by
    certificate of offence) or Part III of the POA (by information), and suggested
    that the Crown had laid the charge under Part III because the 30-day time limit
    for proceedings under Part I had been exceeded. Given the agreed facts, the
    absence of any testing of the discharge, the immediate remediation efforts by
    the respondent, and the fact that this was the first time the respondent had
    been charged with an offence by the Ministry of the Environment, the trial
    justice agreed with the defence submission that it would have been appropriate for
    the respondent to have been charged under Part I, which entailed a lower fine.

[15]

The
    trial justice went on to find that there were exceptional circumstances in this
    case, not because of monetary implications or financial burdens on the
    respondent but because of the nature of the offence and the respondents
    immediate actions in light of the offence. As a result, the $25,000 minimum penalty
    requested by the Crown should not automatically [be] accepted as appropriate.
    She stated:

The penalty to be imposed, like the facts, should be distinct
    to each and every case before the Court and take into account individual facts
    and circumstances in addition to the principles of specific and general
    deterrence.

[16]

The
    trial justice then outlined the circumstances of the case, highlighting ostensible
    shortcomings of the Crowns case against the respondent:

·

the Ministry of Environment investigator did not observe black
    water flowing into the creek;

·

the aeration system in the pond had not been operating for about
    one year;

·

after calling the Ministry of the Environment, the owner of the
    pond declined to make any further statements;

·

no samples were taken and no analysis was completed; and

·

there was no information as to any environmental impact of the
    said discharge.

[17]

The
    trial justice noted that as soon as the respondent became aware of the
    situation, it retained an environmental firm to assess the situation and
    prepare an action plan, purchased a new pump for the pond, and arranged for the
    black organic matter in the pond to be cleaned. The cost of remediation was
    $12,000. The trial justice found that these actions, along with the fact that
    this was the first time the respondent had been charged under the OWRA, were
    clearly indicative of both a good neighbour and of a good corporate citizen
    and that the circumstances of the case [fit] into the descriptor of
    exceptional circumstances for purposes of sentencing.

[18]

The
    trial justice concluded that this finding, along with her finding that it would
    have been appropriate for charges to have been laid under Part I rather than
    Part III, warranted a fine lower than the statutory minimum, which she said
    would satisfy both general and specific deterrence and was in the interests of
    justice. She noted that, had the respondent been charged with two counts of
    violating the OWRA pursuant to Part I of the POA, the fine set for each offence
    would have been $300. Given the respondents reaction to the situation, it was
    not unreasonable to believe that it would have accepted responsibility and paid
    these fines. Accordingly, the trial justice imposed a fine of $600 plus costs.

The decision on appeal

[19]

The
    appeal judge accepted that the absence of a prior conviction under the OWRA is
    not a mitigating factor, but stated that it was not irrelevant to whether the
    circumstances in this case were exceptional. In addition, the appeal judge
    concluded that the trial justice erred in second-guessing the Crowns
    prosecutorial discretion in prosecuting under Part III rather than Part I, and
    that this informed her decision to impose a $600 fine. However, the appeal
    judge went on to conclude that there were exceptional circumstances that could
    properly found relief from the minimum fine prescribed by the OWRA.

[20]

The
    appeal judge considered that exceptional circumstances and the interests of
    justice are somewhat tautological concepts, and concluded that a fine is not
    in the interests of justice when it is unfair. Although he identified two
    aggravating factors  the impairment of water quality and the concerted action
    the respondent took in risking the release of fertilizer into the water stream
    over a two-week period  the appeal judge concluded that imposing a $25,000
    fine in the circumstances of this case would be seen as patently unfair, and
    in his view was unfair. He described the offence as a very modest incident
    and asserted that it was not obvious that the Crown could have proved the
    charge in any event: In my view, on the facts that I have before me, if push
    came to shove, it is a case that the Crown might not have been able to prove
    but for Henry of Pelhams guilty plea.

[21]

In
    particular, the appeal judge referred to the refusal of the pond owner to
    cooperate with the Ministry; the inability to prove the cause of the blackness
    of the pond with any certainty; and the mere supposition that run-off from
    the respondents vineyard entered the pond. He stated: The facts were so
    minimal, that in my view it could be seen to be an exceptional circumstance.
    Although the pond gave off an organic smell, the appeal judge noted that there
    is always faint organic smell in a forest in the fall.

[22]

In
    summary, the appeal judge stated that the Crown was seeking a significant
    sentence for an offence of very modest proportion, an offence that it might
    never have been able to prove on a contest but for the guilty plea of the
    defendant. The appeal judge considered that the guilty plea on the facts
    admitted was a substantially mitigating circumstance, and in all of the
    circumstances concluded that the fine should be increased from $600 to $5,000, rather
    than to the $25,000 minimum prescribed by the OWRA.

THE POSITIONS OF THE PARTIES

The appellant

[23]

The
    Crown argues that s. 59(2) must be read in the context of the statutes to which
    it applies and must be applied in a manner consistent with the objectives of
    those statutes. The overarching objective of public welfare legislation, as the
    Supreme Court of Canada held in
R. v. Wholesale Travel Group Inc.
, [1991]
    3 S.C.R. 154, is the protection of the public. As this court held in
R. v.
    Cotton Felts Ltd.
(1982), 2 C.C.C. (3d) 287 (Ont. C.A.), deterrence is the
    paramount factor in sentencing under public welfare statutes. The Crown argues
    that s. 59(2) must not be interpreted in a manner that undermines this purpose.

[24]

Thus,
    the Crown submits that the requirement of exceptional circumstances
    demonstrates the intention that the discretion in s. 59(2) is intended to be
    exercised sparingly  rarely, in the clearest of cases, and in
    extraordinary contexts. If the court is satisfied that exceptional
    circumstances exist, it must then engage in a balancing exercise, balancing
    any injustice that imposing the minimum fine would cause for the defendant,
    against the Legislatures determination that the societal interests which the
    public welfare statute is designed to protect require the imposition of a
    minimum fine. The court may impose a sentence below the minimum if the balance
    tips in favour of the defendant.

The respondent

[25]

The
    respondent describes s. 59(2) as a safety valve that has prevented minimum
    fines from being challenged under s. 12 of the
Canadian Charter of Rights
    and Freedoms

on the basis that they constitute cruel and unusual
    punishment. The respondent adopts the appeal judges interpretation that not
    in the interests of justice means unfair, an interpretation that it says
    accords with the grammatical and ordinary sense of the words. The respondent argues
    that s. 59(2) should permit relief from minimum fines whenever exceptional
    circumstances exist, not just when the offenders ability to pay is at issue.

[26]

The
    respondent submits, further, that the POA and the OWRA do not have the same
    purposes and should not be considered together. The POA is concerned with the
    efficient prosecution of provincial offences, while the OWRA is concerned with
    the conservation, protection, and management of Ontarios waters. Section 59(2)
    of the POA should be interpreted liberally, so as to broaden rather than narrow
    the range of exceptional circumstances, in accordance with the grammatical and
    ordinary sense of the word otherwise, which expands the interests of justice
    beyond simply avoiding minimum fines that would be unduly oppressive.

The intervener

[27]

The
    intervener argues that s. 59(2) should be interpreted as a flexible safety
    valve that permits trial judges to exercise discretion to reduce a fine in any
    case where imposing the minimum fine would be contrary to the interests of
    justice. The discretion need not be exercised sparingly or rarely: The
only
question under s. 59(2) is whether the minimum fine is contrary to the
    interests of justice. If so, the circumstances will be exceptional (emphasis in
    original).

[28]

The
    intervener highlights the fact-specific nature of the decision that must be
    made and emphasizes the need for flexibility in the exercise of the discretion.
    The trial judge must consider not only the circumstances of the defendant, but
    also the nature of the conduct and whether punishing it advances or frustrates
    the public welfare goal of the particular statute.
A priori
rules
    limiting the application of s. 59(2) cannot safely be created.

[29]

The
    intervener submits that proportionality should be the dominant principle of
    sentencing for regulatory as well as criminal offences. According to the CLA,
    deterrence is simply one goal among many that must be considered in imposing a
    proportionate sentence.

DISCUSSION

[30]

As
    I noted at the outset, although this appeal arises in the context of a
    prosecution under the OWRA, that Act is only one of many public welfare
    statutes that are subject the enforcement regime established by the POA.
    Accordingly, I briefly will review the POA before addressing the nature of
    public welfare legislation, and the OWRA in particular.

The Provincial Offences Act

[31]

In
    1979, the POA replaced the
Summary Convictions Act
, which had governed
    the prosecution of regulatory offences. It was designed to provide a new
    procedure for the prosecution of regulatory offences  a procedure that, as the
    purpose provision of the POA makes clear, reflects the distinction between
    provincial offences and criminal offences. A more complete history of the POA
    is set out in the final report of the Law Commission of Ontario,
Modernizing
    the Provincial Offences Act: A New Framework and Other Reforms
(2011), at pp.
    22-24.

[32]

The
    POA established a two-pronged approach to prosecuting regulatory offences.
    Minor offences can be prosecuted under Part I by means of a certificate of
    offence  essentially a ticket-based scheme that does not require judicial
    proceedings. The maximum fine for an offence prosecuted under Part I is $1,000.
    More serious offences can be prosecuted by laying an information under Part
    III. That section establishes a presumptive maximum fine of $5,000, but
    specifically contemplates that other legislation may establish a different fine
    regime, as the OWRA does.

The nature of regulatory offences

[33]

As
    the Supreme Court noted in
R. v. Sault Ste. Marie
, [1978] 2 S.C.R.
    1299, at pp. 1302-1303, regulatory offences are in substance of a civil nature
    and might well be regarded as a branch of administrative law to which
    traditional principles of criminal law have but limited application. After
    all, regulatory offences are not true crimes  conduct that is, in itself,
    so abhorrent to the basic values of human society that it ought to be prohibited
    completely:
R. v. Wholesale Travel Group Inc.
,
[1991] 3 S.C.R.
    154, at p. 218. Regulatory offences arise in the context of conduct that is
    otherwise lawful  indeed, conduct that may be encouraged and promoted for the
    good of society, but which nevertheless requires regulation in the public
    interest: see
Wholesale Travel
, at pp. 216-222, per Cory J. As the Supreme
    Court noted more recently, regulatory legislation does not share the same
    purpose as the criminal law, and it would be a mistake to interpret it as
    though it did:
Wilson v. British Columbia (Superintendent of Motor
    Vehicles)
, 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 34.

[34]

It
    is not necessary to prove
mens rea
in order to prove the commission of
    regulatory offences, which involve strict liability. The Crown need prove only
    the commission of the prohibited act beyond a reasonable doubt. Liability
    follows unless the defendant can establish, on the balance of probabilities, a
    due diligence defence  that reasonable care was taken to avoid the commission
    of the prohibited act.

[35]

Public
    welfare statutes regulate everything from driving to fishing, environmental protection
    and workplace health and safety. As noted above, the POA governs the penalties
    for committing regulatory offences unless the relevant statutes establish
    different penalties. This occurs in a variety of contexts. For example, the
Occupational
    Health and Safety Act,
R.S.O. 1990, c.
    O.1,
establishes a maximum fine of $100,000 for individuals (in
    addition to the possibility of imprisonment) and $1.5 million for corporations.
    The
Liquor Licence Act
, R.S.O.
    1990, c. L.19,

establishes a maximum fine of $100,000 for
    individuals and $250,000 for corporations, and doubles these figures for
    offences involving minors. The
Fish and Wildlife Conservation Act, 1997,
S.O. 1997, c. 41,
does not distinguish
    between individuals and corporations, establishing a maximum fine of $25,000
    for any person violating the Act and $100,000 for certain specified offences and
    offences committed for commercial purposes.

[36]

The
    OWRA establishes fines of up to $50,000 for individuals first conviction and
    $100,000 for subsequent convictions; and up to $250,000 for corporations first
    convictions and $500,000 for subsequent convictions. But it also sets out a
    higher range of penalties for more serious offences  from $5,000 to $4 million
    for individuals and from $25,000 to $6 million for corporations, a range that
    increases for second and subsequent convictions.

[37]

The
    offence in this case is one of the more serious offences to which the higher
    range of penalties applies. The respondents guilty plea put the $25,000
    minimum fine in play.

The nature of minimum fines

[38]

In
Cotton Felts
,
this
    court set out an inclusive list of general considerations when it comes to
    sentencing on public welfare offences, but it emphasized that the need to
    enforce regulatory standards through deterrence is paramount. Minimum fines are
    a policy tool that is often used to accomplish this goal.

[39]

Minimum
    fines apply without regard to the circumstances of individual offenders or the
    circumstances surrounding the commission of particular offences, and so
    necessarily risk overinclusion. They reflect a legislative judgment that
    nothing less than the minimum fine is sufficient to achieve deterrence in light
    of the nature of the offence committed.

[40]

The
    Legislature established that all corporations that breach s. 30(1) of the OWRA
    are liable to a minimum fine of $25,000. Whether, or to what extent, the
    minimum fine succeeds in promoting deterrence is of no moment for the purposes
    of sentencing. It is the approach chosen by the Legislature and the courts
    responsibility is to apply that approach. The trial judges sentencing discretion
    is limited to determining whether a fine above the minimum (and below the
    maximum) is warranted.

[41]

The
    strictures of a minimum fine regime are to some extent mitigated by the
    exercise of prosecutorial discretion. Just as in the criminal law context a
    prosecutor may choose between pursuing a charge by summary conviction or
    indictment, in the regulatory context a prosecutor may choose between pursing a
    charge by means of the ticketing procedure under Part I or by laying an
    information under Part III of the POA, which gives rise to the possibility of
    larger and in some cases minimum fines. However, once the decision is made to
    prosecute under Part III, the applicable minimum fine must be imposed on
    conviction unless relief is warranted under s. 59(2).

How should s. 59(2) be interpreted?

[42]

I
    set out s. 59(2) of the POA again for convenience:

(2) Although the provision that creates the penalty
    for an offence prescribes a minimum fine, where in the opinion of the court
    exceptional circumstances exist so that to impose the minimum fine would be
    unduly oppressive or otherwise not in the interests of justice, the court may
    impose a fine that is less than the minimum or suspend the sentence.

[43]

This
    court has exercised the discretion under s. 59(2) to reduce minimum fines in
    two cases, both of which arose in the context of the
Compulsory Automobile
    Insurance Act,
R.S.O. 1990, c. C.25
.
    In
R. v. Ade-Ajayi
, 2011 ONCA 192, 97 C.C.L.I. (4th) 183, the Crown
    agreed to a reduced fine in the particularly unusual circumstances of the
    case, which involved an appellant who was unemployed, seeking disability
    support and living off student loans. In brief reasons, this court described
    the reduced fine as being in the interests of justice without considering
    whether the minimum fine was unduly oppressive in the circumstances. In
R.
    v. A.E.
, 2016 ONCA 243, 348 O.A.C. 68, another case involving driving
    without compulsory insurance, this court reduced the minimum fine because of
    the appellants mental illness and its effect on his ability to earn money to
    pay the fines. Again, this court described its decision to reduce the fines as
    being in the interests of justice. In neither case did this court provide
    interpretive guidance for s. 59(2).

[44]

In
    my view, it is important to distinguish the authority to provide relief from a
    minimum fine from the duty to impose the minimum fine itself. Contrary to the
    interveners assertion, minimum fines are not mere guidelines; they are statutory
    requirements that establish sentencing floors. The starting point is that trial
    judges are required to impose minimum fines established by the relevant
    legislation. Their authority to provide discretionary relief under s. 59(2) of
    the POA  to impose a lesser fine or even suspend a sentence  does not have
    the effect of rendering minimum fines conditional in their application. On the
    contrary, minimum fines must be imposed unless the defendant satisfies the
    court that exceptional circumstances exist that justify the exercise of the
    courts discretion to provide relief.

[45]

It
    is important to emphasize that the courts discretion is not unfettered. If it
    were  if trial judges could refuse to impose a minimum fine whenever they
    considered it suboptimal to do so  minimum fines would be reduced in status
    from rules to mere suggestions.

[46]

Section
    59(2) addresses this concern by limiting the circumstances in which relief may
    be granted. The discretionary power not to apply a minimum fine arises only if,
    in the opinion of the court, the specified criteria are satisfied.

[47]

The
    difficulty is that the criteria are worded vaguely. Section 59(2) requires
    trial judges to determine whether circumstances are exceptional; whether a
    minimum fine would be unduly oppressive; and whether a minimum fine would not
    be in the interests of justice. These are evaluative and comparative concepts
    that have no settled core meaning, and they appear to leave considerable room
    for interpretation and application.

[48]

However,
    vague terms are not to be understood as radically indeterminate, such that they
    permit virtually any outcome. Vague terms must be interpreted in context, as
    the modern approach to statutory interpretation makes clear. Today there is
    only one principle or approach, namely, the words of an Act are to be read in
    their entire context and in their grammatical and ordinary sense harmoniously
    with the scheme of the Act, the object of the Act, and the intention of
    Parliament: Elmer A. Driedger,
Construction of Statutes
, 2nd ed.
    (Toronto: Butterworths, 1983) at p. 87, adopted by the Supreme Court in
Rizzo
    & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21, and in
Bell
    ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    para. 26.

[49]

Thus,
    the discretion in s. 59(2) must be understood in the context of the
    Legislatures commitment to imposing minimum fines in a variety of public
    welfare contexts in order to promote the goal of deterrence. The OWRA does not
    establish a minimum fine that applies on a discretionary basis. The OWRA
    establishes a minimum fine that applies automatically on conviction for the
    relevant offence, subject only to the limited discretion of trial judges to
    grant relief under s. 59(2) of the POA.

[50]

The
    interveners submission that the interpretation of s. 59(2) should reflect the
    primacy of proportionality as a sentencing principle must be rejected.  Where
    minimum fines are prescribed in public welfare legislation, or in the POA
    itself, they establish a floor  a starting point for consideration of the
    appropriate fine  that applies regardless of any concerns about proportionality.
    Proportionality is a relevant consideration in setting a fine
above the prescribed minimum, but the principle
    cannot be invoked to subvert the Legislatures decision to establish a minimum
    fine.
Obiter remarks in
R. v. Scantlebury
, 2016 ONCA 453, 350
    O.A.C. 174, at para. 30, a decision granting leave to appeal a decision under
    the POA,
are not to be read as authority to the contrary.

[51]

Given
    the variety of legislation that establishes minimum fines and the myriad
    circumstances that may present themselves to the trial judge at sentencing
    time, it is not possible to be prescriptive about the operation of s. 59(2).
    Nevertheless, it is possible to provide general guidance.

Exceptional circumstances

[52]

The
    power to provide relief from a minimum fine arises only in exceptional
    circumstances. Rosenberg J.A. reviewed the meaning of exceptional in the
    criminal law context in
R v. W. (R.E.)
(2006)
, 79 O.R. (3d) 1 (C.A.), and stated as follows, at
    para. 31:

The theme that runs through use of the term exceptional in
    both criminal case law and legislation, is that it is intended to describe the
    clearest of cases. Such cases include those where applying the normal rules
    would undermine the purpose of the legislation, where the exercise of the
    unusual power is necessary or required, and where the exercise of the unusual
    jurisdiction is capable of explanation.

[53]

I
    do not think it is helpful to canvass the sorts of circumstances that might be
    considered exceptional in the context of public welfare offences, or to
    speculate as to how often such circumstances may arise. Nor is it helpful to
    substitute for the term exceptional terms such as rarely, in the clearest
    of cases, and in extraordinary contexts  all of which are equally vague.
    Suffice it to say that trial judges must not recognize exceptional
    circumstances too readily, lest exceptional circumstances become unexceptional,
    or even routine, and the exercise of the discretionary power to provide relief
    from minimum fines undermine the deterrent effect minimum fines are designed to
    have.

[54]

Key
    to the exercise of the discretionary power to provide relief from a minimum
    fine is not the exceptionality of the circumstances of a case, in general, but
    the requirement that a minimum fine be either 1) unduly oppressive; or 2) otherwise
    not in the interests of justice. These requirements are disjunctive and must be
    understood as addressing different circumstances. As I will explain, unduly
    oppressive normally will be limited to addressing situations of personal
    hardship  typically financial  while the interests of justice allows
    consideration of broader residual concerns.

Unduly oppressive

[55]

Oppressive
    suggests a moral judgment that something is harsh and wrongful on that account.
    At the same time, however, s. 59(2) makes clear that it is not sufficient that
    a minimum fine is considered oppressive; it must be
unduly
oppressive before relief can
    be provided. The language chosen must be taken to signal the Legislatures
    intention to establish a very high bar for granting relief from a minimum fine.

[56]

There
    is nothing surprising about this, given the Legislatures purpose. Minimum
    fines are designed to deter and, as I have said, they are necessarily
    overinclusive to a greater or lesser extent. To take an example, the
Compulsory
    Automobile Insurance Act
establishes a minimum fine of $5,000 for driving
    without insurance. That is a high fine for most people and is especially so for
    people of modest means. But the cost of insurance is also high for most people
    and is also especially high for people of modest means. The Legislature chose
    to require drivers to have insurance regardless of the cost, and chose to
    enforce this requirement with a mandatory minimum penalty. The Legislature
    chose, in other words, to make it more financially onerous to offend the
    legislation than to bear the required cost of insurance premiums:
Ade-Ajayi,
at para. 13. That choice was open to the Legislature, and it should not be
    undermined by a decision to refuse to impose a minimum fine simply because it
    seems high in particular circumstances. Minimum fines will often seem high; that
    is the point of deterrence in public welfare offences. Something more is
    required in order to establish that imposing a minimum fine would be unduly
    oppressive in particular circumstances, lest the courts exercise of
    discretion have the effect of undermining the Legislatures purpose in
    establishing a minimum fine.

[57]

Although
    relief to corporate defendants on the basis that a minimum fine would be unduly
    oppressive cannot be ruled out, normally relief will be limited to individuals who
    can establish personal hardship based on consideration of their unique personal
    circumstances  hardship that rises to an extreme level they cannot be made to
    bear. Corporations seeking relief from a minimum fine normally will do so under
    the residual interests of justice category.

Interests of justice

[58]

The
    interests of justice is a term that is used in a variety of contexts. The
    term is vague, but as I have said, it does not confer an unbounded discretion
    on trial judges to relieve against a minimum fine on that account. The meaning
    of the term must be informed and limited by consideration of the context in
    which the interests of justice are asserted.

[59]

There
    are many examples of trial judges determining whether imposition of a minimum
    fine would not be in the interests of justice, but I do not think it helpful
    to review the case law here. Nor will I attempt to enumerate the factors that
    are properly considered in determining the interests of justice. As Doherty
    J.A. explained in another context, the relevant factors cannot be catalogued:
Ontario
    (Attorney General) v. 8477 Darlington Crescent
, 2011 ONCA 363, 333 D.L.R.
    (4th) 326, at para. 97.

[60]

Nevertheless,
    some general principles are clear. First and foremost, as with any
    discretionary authority, the discretion to relieve against a minimum fine on
    the basis that it would not be in the interests of justice to impose the fine
    cannot be exercised arbitrarily. Discretionary powers must be exercised having
    regard to the purpose of the relevant legislation and the purpose of the
    discretion in particular:
Roncarelli v. Duplessis
, [1959] S.C.R. 121.

[61]

In
    particular, the discretionary power authorized by the POA must be exercised
    against the backdrop of the Legislatures decision to emphasize deterrence by
    means of a system of minimum fines. Trial judges must consider not only the
    interests of an individual offender but also the interests of the community
    protected by the relevant public welfare legislation.

[62]

The
    exercise of discretionary power to provide relief from a minimum fine can be
    understood as promoting fairness in sentencing, but fairness is not a
    freestanding test for determining the application of s. 59(2). Trial judges are
    not authorized to refuse to apply minimum fines simply on the basis that they
    consider that it would be unfair to apply them. Trial judges must provide
    reasons that explain and justify their exercise of discretion in accordance with
    s. 59(2). A bald appeal to fairness will not suffice.

SUMMARY

[63]

I
    would summarize the above discussion as follows:

1)

Minimum
    fines establish sentencing floors that apply regardless of ordinary sentencing
    principles. The imposition of fines
above
the minimum threshold is
    governed by ordinary sentencing principles, as well as any principles set out
    in the relevant legislation.

2)

Section
    59(2) of the POA vests a discretionary authority in trial judges to provide
    relief from minimum fines in exceptional circumstances. The burden is on those
    seeking the grant of relief to establish that relief is warranted based on the
    relevant considerations.

3)

Section
    59(2) applies exceptionally. It will be an unusual case in which the imposition
    of a minimum fine may be considered unduly oppressive or otherwise not in
    the interests of justice.

4)

Whether
    a minimum fine is unduly oppressive usually will depend on consideration of
    personal hardship. The bar for relief is set very high. Mere difficulty in
    paying a minimum fine is inadequate to justify discretionary relief.

5)

Whether
    a minimum fine is otherwise not in the interests of justice involves
    consideration of not only the interests of an individual offender but also the
    interests of the community protected by the relevant public welfare
    legislation.

6)

The
    discretion under s. 59(2) cannot be exercised arbitrarily. Trial judges must
    explain their reasons for invoking s. 59(2), and in particular must demonstrate
    both that the circumstances are exceptional and that it would be unduly
    oppressive or otherwise not in the interests of justice to apply the minimum
    fine.

THE APPEAL JUDGE ERRED IN PROVIDING RELIEF UNDER S. 59(2)

[64]

The
    appeal judge properly concluded that the trial justice erred in second-guessing
    the Crowns decision to prosecute under Part III rather than Part I. That was a
    decision the Crown was entitled to make in the exercise of its prosecutorial
    discretion, and the exercise of prosecutorial discretion is not a relevant
    consideration under s. 59(2). The appeal judge also properly concluded that the
    trial justice erred in treating the absence of any prior conviction as a
    mitigating factor. As the appeal judge noted, the absence of an aggravating
    factor does not count as a mitigating factor. Moreover, in ss. 109(2) and
    110.1(1), the OWRA specifically addresses the relevance of prior convictions in
    setting minimum penalties.

[65]

However,
    the appeal judge erred in concluding that the circumstances of this case were
    exceptional and that it would not be in the interests of justice to impose the
    minimum fine under the OWRA. His error flowed from his conclusion that the interests
    of justice means no more than fairness.

[66]

As
    I have explained, unfairness is not the test under s. 59(2). The Legislature
    has decided what is fair in establishing minimum fines. Trial judges are
    required to apply those fines unless they conclude, in accordance with the
    requirements set out in s. 59(2), that relief from a minimum fine is warranted.

[67]

The
    appeal judges decision that imposing the minimum fine would be unfair  and
    thus not in the interests of justice  was based on his view that the breach
    of the OWRA was a very modest incident and that the Crown might not have been
    able to prove the charge. In my view, he stated, on the facts that I have
    before me, if push came to shove, it is a case that the Crown might not have
    been able to prove but for Henry of Pelhams guilty plea.

[68]

Essentially,
    the appeal judge engaged in a counterfactual exercise, considering several
    factors that in his view would have rendered prosecution difficult, had it
    occurred. The facts in this case were so minimal, he concluded, that they
    created exceptional circumstances for the purposes of s. 59(2). No one knew
    what had really happened to the water in the pond, nor, he added, was the faint
    organic smell conclusive: We all know that as we walk through a forest, there
    is always a faint organic smell in the fall. In these circumstances, the appeal
    judge found that the respondents plea of guilt was a substantially mitigating
    circumstance.

[69]

With
    respect, the appeal judges counterfactual analysis involved speculation on
    matters that he was not entitled to consider. His reliance on the idea of
    fairness led him to characterize the respondents offence as minor and relatively
    insignificant  a characterization that was not open to him in light of the
    Legislatures determination that a minimum fine of $25,000 should be imposed
    for first-time corporate offenders. The appeal judge erred, further, in
    concluding that the respondents guilty plea mitigated the minimum fine. Where
    the Legislature has established a minimum fine, mitigation is relevant only in the
    determination of whether a fine above the minimum should be imposed. As the
    Crown points out in its submissions, the vast majority of provincial offences
    are resolved by guilty plea. Guilty pleas cannot be considered exceptional
    circumstances, nor can the interests of justice be invoked to permit guilty
    pleas to undermine a minimum fine regime.

The strength of the Crowns case was irrelevant given the
    plea of guilt

[70]

As
    for the strength of the Crowns case, the respondent cannot at once plead
    guilty to having committed an offence and maintain that the case against it was
    weak and might not have been proven. Those charged with having committed
    regulatory offences are free to contest the charges and so require that the
    Crown prove the commission of the offences beyond a reasonable doubt. If they
    choose not to do so, a guilty plea is just that: it is an admission that the
    offence has been committed, regardless of how easy or difficult it might have
    been for the Crown to prove the charge.

The minimum fine ought to have been imposed

[71]

At
    the end of the day, the appeal judge varied the fine to an amount below the
    minimum because he considered that what had occurred was relatively minor in
    nature  in essence, no great harm had occurred and the respondent had acted
    responsibly in all the circumstances.

[72]

I
    agree that, on the agreed facts, the respondent acted responsibly following commission
    of the offence. But just as acting responsibly to correct a problem following a
    regulatory breach is not a mitigating factor on sentence (
Ontario (Labour)
    v. Flex-N-Gate Canada Company
, 2014 ONCA 53,
    119 O.R. (3d) 1, at para. 23), it is not a relevant consideration for the purpose
    of applying the discretion in s. 59(2) to provide relief from a minimum fine.
Regardless of its post-offence conduct, the fact remains that the respondent
    pleaded guilty to impairing the quality of water  an aggravating factor under
    the OWRA  and doing so over a two-week period. I see nothing exceptional in
    this and no basis for concluding that the interests of justice justify granting
    relief from the minimum fine prescribed in the OWRA in these circumstances.

CONCLUSION

[73]

I
    would allow the appeal and vary the sentence by imposing the minimum fine of
    $25,000.

Released:
    December 7, 2018 DW

Grant
    Huscroft J.A.

I
    argee.  David Watt J.A.

I
    agree.  Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Environment and Climate Change) v. Geil,
    2018 ONCA 1030

DATE: 20181214

DOCKET: C64736

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen
(Ministry of the Environment and Climate Change)

Appellant

and

Jason John Geil

Respondent

Kathleen A. Clements and Nicholas P. Adamson, for the
    appellant

Harald A. Mattson, for the respondent

Heard: September 19, 2018

On appeal from the order dated
    August 24, 2017 of Justice Norman S. Douglas of the Ontario Court of Justice,
    sitting as a Provincial Offences Appeal Court, allowing the appeal from the
    conviction entered on January 27, 2017 by Justice of the Peace Ralph Cotter of
    the Ontario Court of Justice.

Strathy C.J.O.:

[1]

This Crown appeal concerns warrantless inspection powers under s. 156(1)
    of the
Environmental Protection Act
, R.S.O. 1990, c. E.19 (
EPA
).
[1]
Subsection 156(1)(c) permits a provincial officer, without a warrant or court
    order, to inspect any place in or from which the officer reasonably believes
    a contaminant is being, has been or may be discharged into the natural
    environment. This appeal requires us to interpret the standard of reasonable
    belief grounding the inspection power and to apply that standard to the
    factual circumstances of this case.

[2]

The essential facts were uncontested at trial. The respondent admitted
    that on the day of the alleged offence, November 22, 2013, there was an open
    fire burning on his property and that he prevented a provincial officer from
    the Ministry of the Environment and Climate Change (MOE) from entering the
    property to carry out an inspection. The respondent was charged with hindering
    or obstructing the provincial officer in the performance of his duties,
    contrary to s. 184(1) of the
EPA
.

[3]

The only issue at trial was whether the provincial officer had the
    requisite authority under s. 156(1) to conduct a warrantless inspection of the
    respondents property on the date of the alleged offence.

[4]

The justice of the peace of the Provincial Offences Court found that the
    provincial officer had authority to enter the respondents property pursuant to
    s. 156(1)(c), and entered a conviction. The respondent appealed to a judge of
    the Ontario Court of Justice, sitting as a Provincial Offences Appeal Court
    (POAC). The POAC judge quashed the conviction and entered an acquittal.

[5]

The Crown sought leave to appeal to this court on special grounds on a
    question of law alone, pursuant to s. 131 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33. Leave was granted by a single judge of this court on
    December 13, 2017.

[6]

For the reasons that follow, I would allow the appeal, set aside the
    acquittal, and restore the conviction entered by the justice of the peace.

I.

the facts

[7]

On November 22, 2013, a bylaw officer of the Township of North Dumfries
    received a call from a resident, who stated that construction debris was being
    hauled onto a neighbouring property where it was being burned. The bylaw
    officer attended at the callers property that same morning. He spoke to the
    neighbour, and observed a large fire on the respondents property. He could not
    say for certain what was being burned, but testified that it included wood. He
    observed smoke coming from the fire, but did not detect any unusual colour or
    smell.

[8]

The bylaw officer informed the MOE of his observations.

[9]

Within about four hours of the bylaw officers initial observations, two
    MOE provincial inspection officers attended at the respondents property,
    together with the bylaw officer and two officers from the Waterloo Regional
    Police.

[10]

One of the provincial officers testified that, based on the information
    he had received from the bylaw officer, he had three concerns: waste was being
    transported to and being disposed of on the respondents property, an activity
    regulated by Part V of the
EPA
; the waste was being burned; and the
    compounds generated by the burning waste would be emitted into the natural environment
    in the form of smoke.

[11]

The provincial officer did not personally see smoke or fire until he
    entered the respondents property. It is acknowledged by the appellant that the
    reasonableness of the officers belief must be assessed on the basis of the state
    of his knowledge before he entered the property.

[12]

After the provincial officer entered the property, he observed smoke
    from a fairly substantial fire of broken wood. He identified himself and
    informed the respondent that he wanted to inspect the fire to determine whether
    or not waste was being burned, and whether it constituted a contravention of
    the
EPA
. The respondent told the provincial officer that open burning was
    occurring on his property. The bylaw officer asked the respondent what was
    being burned, and the respondent indicated that he was burning debris from a
    demolished barn on the property. The respondent denied the officers access to
    inspect the fire and asked them to leave. The officers did so.

II.

decisions in the courts below

Provincial Offences Court

[13]

The justice of the peace noted that a reasonable belief is not the same
    as reasonable and probable grounds in the criminal context. Applying an
    analysis based on
R. v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168, as
    applied in
R. v. Kalsatos
, 2016 ONCJ 353, 361 C.R.R. (2d) 71, at para.
    72, the justice found that the provincial officer had acted on a credible and
    reliable tip. In making this finding, he noted that: (1) the presence of a fire
    was confirmed by both the neighbour and by the bylaw officer; (2) their
    observations were timely and close to the time of the inspection; and (3) there
    had been a history of burning on the property.

[14]

The justice of the peace noted that the information received by the
    provincial officer from the bylaw officer was sufficient to engage the
    provincial officers inspection powers, even though that officer saw no smoke
    or fire before he entered the property. Section 156(1)(c) permitted the officer
    to enter the property if he reasonably believed a contaminant
had
been discharged. The respondent was convicted.

Provincial Offences Appeal Court

[15]

In a brief decision, the POAC judge held that the trial justice erred in
    law in interpreting the provincial officers right to enter the property
    without a warrant.

[16]

He held that the provincial officers belief that contaminants may have
    been discharged did not have an adequate foundation. It was not enough that the
    provincial officer was told by someone else that someone may have been discharging
    contaminants in the air.

[17]

The respondent was not obstructing or hindering the provincial officer
    in the execution of his duties, because the provincial officer did not have
    authority to enter the respondents property. The POAC judge added:

Had the Inspector gone and got a warrant to enter the property,
    he would have had to convince the Justice of the Peace that he had a reasonable
    belief, and then he would have been in the lawful execution of his duty

[18]

The POAC judge allowed the appeal and quashed the conviction.

III.

the issues

[19]

There are two issues raised in this appeal:

a.

Did the POAC judge err in his articulation of the legal test for a
    regulatory inspection under s. 156(1) of the
EPA
?

b.

Did the POAC judge err in finding that the provincial officer did not
    have the authority to conduct an inspection of the respondents property under
    s. 156(1) of the
EPA
?

[20]

As I have noted, a resolution of these issues requires this court to
    interpret the requirement of reasonable belief in s. 156(1).

[21]

Before setting out my analysis, I will briefly summarize the parties
    positions.

IV.

the parties positions

Appellant

[22]

The appellants position is that smoke is a contaminant under the
EPA
.
    A direct observation of the discharge of smoke by the bylaw officer and the
    report of the neighbour were sufficient to support the provincial officers
    reasonable belief that a contaminant was being, had been, or may be discharged
    into the natural environment. This belief enabled the officer to employ the inspection
    powers in s. 156(1).

[23]

The appellant takes issue with the analysis of both the trial justice
    and the POAC judge. The appellant submits that it was not appropriate to import
    into the regulatory context the legal standard set out in
Debot
for
    assessing tips in a criminal law context. While the trial justice found that
    the
Debot
standard was met in this case, the appellant submits that he
    set the bar too high.

[24]

The meaning of reasonable belief must be determined based on the
    nature of the regulatory power and the context in which it is exercised. The
    purpose of regulatory inspections is to determine compliance, not penal
    liability. By their very nature, regulatory inspections occur before there are
    reasonable grounds to believe an offence has been committed. The statutory
    standard of reasonable belief in the regulatory context is lower than what is
    required under the criminal law.

Respondent

[25]

The respondent asks this court to find that reasonable belief means more
    than mere suspicion. He submits that the report of smoke, with no evidence of
    an unusual colour or odour, could not give rise to a reasonable belief that
    waste was being hauled onto the property and burned. There was no evidence that
    wood smoke is a contaminant or that the wood being burned on the property
    contained contaminants.

V.

analysis

[26]

The primary issue raised in this appeal  the meaning of reasonably
    believes in s. 156(1) of the
EPA
 is a matter of statutory
    interpretation. The modern approach requires that the words of the statute be
    read in their entire context and in their grammatical and ordinary sense,
    harmoniously with the scheme of the Act, the object of the Act, and the
    intention of the enacting legislative body:
Rizzo & Rizzo Shoes Ltd.
    (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Agraira Canada v. Canada
    (Public Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R.
    559, at para. 64.

[27]

In the analysis that follows, I will consider: (a) the object and scheme
    of the
EPA
; (b) the context of the legislative provision; and (c) the
    plain meaning of reasonable belief. Having undertaken this analysis, I will
    set out in section (d) my interpretation of s. 156(1). Finally, in section (e),
    I will apply that interpretation to the facts of this case, after contrasting
    it with the interpretations in the courts below.

(a)

The object and scheme of the
EPA

[28]

The
EPA
is Ontarios primary environmental protection statute:
Castonguay
    Blasting Ltd. v. Ontario (Environment)
, 2013 SCC 52, [2013] 3 S.C.R. 323,
    at para. 9. Its purpose, consistent with its name, is set out in s. 3(1): to
    provide for the protection and conservation of the natural environment. The
    natural environment is defined in s. 1(1) of the
EPA
as the air,
    land and water, or any combination or part thereof.

[29]

Courts have recognized that this purpose extends beyond the natural
    environment and includes the protection of human health, plant and animal
    life, and property:
Castonguay
, at para. 10;
R. v. Dow Chemical
    Canada Inc.
(2000), 47 O.R. (3d) 577 (C.A.), at para. 49.

[30]

The
EPA
, and the extensive regulatory framework enacted under
    it, establish a scheme for the regulation of many activities affecting the
    natural environment. It is remedial legislation and, as this court has
    observed, it is to be given a large and remedial interpretation:
Re Rockcliffe
    Park Realty Ltd. and Director of the Ministry of the Environment et al.
(1976),
    10 O.R. (2d) 1 (C.A.), per Dubin J.A., at p. 15, per Jessup J.A. (dissenting),
    at p. 7. See also
Legislation Act, 2006
, S.O. 2006, c. 21, Sched. F,
    s. 64(1).

[31]

While the
EPA
is remedial legislation, it also has protective
    and preventative purposes:
Castonguay
, at paras. 12, 21; see also
R.
    v. Consolidated Mayburn Mines Ltd.
, [1998] 1 S.C.R. 706, at para. 54. This
    is apparent from the scope of the regulations and the reporting requirements,
    and the wide range of inspection, enforcement, and remedial powers contained in
    the Act. The Supreme Court in
Ontario v. Canadian Pacific Ltd.
, [1995]
    2 S.C.R. 1031, noted, at para. 43, that environmental legislation embraces an
    expansive approach, to ensure that it can adequately respond to a wide variety
    of environmentally harmful scenarios, including ones which might not have been
    foreseen by the drafters of the legislation.

[32]

The court in
Castonguay
affirmed these observations, at para.
    9, and also acknowledged that the effective functioning of the
EPA
is
    premised upon the expertise and investigative resources of the MOE in
    fulfilling the statutory mandate, stating, at para. 18:

When a contaminant is discharged, the discharger may not know
    the full extent of the damage caused or, in the words of s. 15(1), likely to be
    caused. Moreover, many potential harms such as harm to human health, or injury
    to plants and animals, and even impairment of the natural environment, may be
    difficult to detect without the expertise and resources of the Ministry. As a
    result, the statute places both the obligation to investigate and the decision
    about what further steps are necessary with the Ministry and not the
    discharger.

[33]

The
EPA
achieves its statutory purpose by, among other things,
    establishing limits on permissible discharges of contaminants. It also
    regulates a host of activities that can cause pollution, including waste
    management facilities. These functions are accomplished through a system of
    licences and approvals for certain activities.

[34]

The
EPA
contains a general prohibition, in s. 6, against the
    discharge into the natural environment of any contaminant in an amount,
    concentration or level in excess of that prescribed by regulations. A
    contaminant is broadly defined in s. 1(1) as any solid, liquid, gas, odour,
    heat, sound, vibration, radiation or combination of any of them resulting
    directly or indirectly from human activities that causes or
may cause
an adverse effect (emphasis added). The term
    adverse effect is also broadly defined. It includes the impairment of the
    natural environment, harm or material discomfort to any person, an adverse
    effect on the health of any person, and loss of enjoyment of the normal use of
    property.

[35]

Part X of the
EPA
contains detailed provisions with respect to
    environmental spills, a term that means the discharge of an abnormal quantity
    of a pollutant into the natural environment. A person responsible for a spill
    is required to report it, to take measures to mitigate its effect, and to
    restore the natural environment.

[36]

With respect to enforcement powers, Part XI of the
EPA
contains
    provisions enabling a Director to issue control orders and stop orders to
    require the person to whom the order is directed to stop or limit the discharge
    of a contaminant into the natural environment, or to take measures to control
    or eliminate the discharge.

[37]

The
EPA
further provides that every person who contravenes the
    Act or regulations is guilty of an offence and provides for a fine or
    conviction, or in the case of a subsequent offence by an individual, a fine or
    imprisonment.

[38]

I now turn to an examination of the place of s. 156(1) in the range of regulatory
    powers enumerated in the Act.

(b)

The context of the legislative provision

[39]

The
EPA
contains a broad range of inspection, compliance,
    prevention, and enforcement provisions. The provisions of the
EPA
are
    administered and enforced by Directors appointed by the Minister and by
    provincial officers. The powers of provincial officers are set out in Part
    XV. Subject to certain limits, they are given the power to make inspections
    (ss. 156, 156.1, 158), to conduct searches (s. 161), to take samples (s. 159),
    and to seize evidence (s. 160), among other things.

[40]

A provincial officers authority to make inspections is central to the
    protective and regulatory purposes of the
EPA
and is derived primarily
    from two key provisions in Part XV  s. 156 and s. 158. A third provision, s.
    156.1, provides provincial officers with the power to inspect vehicles and
    vessels.

Section 156(1): Inspection

[41]

Section 156(1), the provision engaged in this appeal, confers authority
    on a provincial officer to make inspections, without a warrant or court order,
    for a range of purposes necessary for the effective administration of the
EPA
.
    The scope of that authority and the circumstances in which it may be exercised
    are informed by the remedial, preventative, and protective purposes of the
    statute.

[42]

The provincial officers authority includes a broad right, under s.
    156(1)(a) to enter any part of the natural environment, without a warrant or
    court order, to make an inspection to ascertain the extent, if any, to which
    contaminants have caused an adverse effect, the causes for any adverse effect,
    and how any adverse effect may be prevented, eliminated or ameliorated and the natural
    environment restored. There is no standard of reasonable belief or other requisite
    state of knowledge applicable to entry into any part of the natural
    environment in s. 156(1)(a), nor is the standard of reasonable belief
    incorporated into six other enumerated circumstances in s. 156(1): see ss.
    156(1)(e.1), (f), (g), (h), (i), and (k).

[43]

The standard of reasonable belief comes into play in five of the
    enumerated circumstances in s. 156(1). In those five circumstances, the
    language of the provincial officer reasonably believes is used as a condition
    of entry into any place: see ss. 156(1)(b), (c), (d), (e), and (j). These
    provisions provide, among other things, that an officer may enter any place
    in which the provincial officer reasonably believes that anything governed or
    regulated by the Act may be found (s. 156(1)(b)), that certain documents are
    likely to be contained (s. 156(1)(d)), that is subject to or required to be
    subject to a permit, licence, or approval (s. 156(1)(e)), or that the permit
    and plates of a vehicle may be found in order to seize them in accordance with
    ss. 48 or 49 (s. 156(1)(j)).

[44]

Section 156(1)(c), the provision at issue here, provides:

For the administration of this Act or the regulations, a
    provincial officer may, without a warrant or court order, at any reasonable
    time and with any reasonable assistance, make inspections, including,

(c) entering any place in or from which
the
    provincial officer reasonably believes
a contaminant is being, has been
    or may be discharged into the natural environment  [Emphasis added.]

[45]

During an inspection under s. 156(1), the provincial officer is entitled
    to, among other things, make excavations, take samples, conduct tests or take
    measurements, require that anything be operated under specified conditions,
    examine, record or copy documents, take photographs, and require the production
    of documents or data: s. 156(2). However, the provincial officer may not
    inspect a room actually used as a dwelling without the consent of the
    occupier except under the authority of a court order under s. 158: s. 156(5).

[46]

A comparison of the inspection powers set out in s. 156(1) with other
    powers accorded to provincial officers by the Act, provides insight into the
    interpretation of s. 156(1). Part XV of the
EPA
sets different
    standards applicable to the provincial officers knowledge in order to support
    the exercise of the enumerated powers. The standard depends on the context. In
    the case of s. 156(1)(a), which permits entry into any part of the natural
    environment, there is no requisite state of knowledge. In some circumstances,
    such as those set out in ss. 156(1)(b), (c), (d), (e), and (j), the statute
    requires reasonable belief. The same standard of reasonable belief applies to
    many other exercises of a provincial officers powers under the provisions of
    the
EPA
.
[2]

[47]

The reasonable belief standard set out in certain provisions of s.
    156(1) also governs the provincial officers authority to issue contravention
    orders under s. 157 of the
EPA
. Section 157 provides that a provincial
    officer may, among other things, issue an order to any person that he or she
    reasonably believes is contravening the provisions of the Act or regulations,
    or another order made under the Act. The order may require the person to comply
    with any directions related to achieving compliance with the Act or
    regulations.

Section 158(1): Judicial authorization

[48]

The provisions of s. 156(1) are to be contrasted with s. 158(1), which
    provides that a justice may authorize a provincial officer to do anything
    enumerated in s. 156 if the justice is satisfied, by evidence under oath by a
    provincial officer, that there is reasonable ground to believe that it is
    appropriate for the provincial officer to do so for administration of the Act,
    and that the provincial officer may not be able to effectively carry out his or
    her duties without such an order.

[49]

Section 158(1) permits an officer to obtain an entry or inspection order
    in circumstances where, among other things, no occupier is present to grant
    access; a person has prevented the officer from conducting an inspection; or
    there are reasonable grounds to believe that an inspection without the order
    may not achieve its purpose or might endanger human health, property or the
    natural environment. In the situations captured under s. 158(1):

A justice may issue an order authorizing a provincial officer
    to do anything set out in subsection 156 (1) or (2) or section 156.1 if the
    justice is satisfied, on evidence under oath by a provincial officer, that
    there is
reasonable ground to believe
that it is
    appropriate for the administration of this Act or the regulations for the
    provincial officer to do anything set out in subsection 156 (1) or (2) or
    section 156.1 and that the provincial officer may not be able to effectively
    carry out his or her duties without an order under this section  . [Emphasis
    added.]

Section 161: Search powers

[50]

The inspection powers authorized by s. 156 are also to be distinguished
    from the search powers in s. 161 of the
EPA
. Section 161(2) authorizes
    a search, without a warrant, of any place other than a room actually used as a
    dwelling, where a provincial officer has reasonable ground to believe: (a)
    that an
offence
has been committed related to the
    discharge of a contaminant into the natural environment or to hazardous waste
    or hauled liquid industrial waste; (b) that there is in such place any thing
    that will afford evidence as to the commission of the offence; and (c) that
    there are exigent circumstances that make it impractical to obtain a search
    warrant. As indicated above, the same standard, reasonable ground to believe,
    applies when a justice issues an order under s. 158(1).

Section 156(1) in context

[51]

Viewing s. 156(1) in the context of the range of powers enumerated in
    the Act indicates that this provision authorizes activities intended to support
    the provincial officers preventative and compliance powers. It is not directed
    at the investigation of offences, the seizure of evidence, or the issuance of
    binding orders or directions. It is at the least intrusive end of the provincial
    officers authority. As outlined above, more intrusive powers require a higher
    level of belief or knowledge, or require prior judicial authorization.

[52]

The more onerous standard of reasonable and probable grounds applies
    to the Director, when issuing a stop order, control order, or an order for
    certain preventative measures or financial assurances.
[3]

[53]

Against this statutory backdrop, I turn to the meaning of reasonable
    belief.

(c)

The plain meaning of reasonable belief

[54]

Sometimes the plain meaning of a statutory term gets lost in the
    application of rules of interpretation. The term reasonable belief, while not
    commonly used in everyday conversation, is not complicated.

[55]

A belief is a state of mind. It is an acceptance of the truth of something,
    without necessarily having personal knowledge of its truth. It can be
    contrasted with suspicion, which is based on supposition. A belief suggests a
    higher level of certainty than suspicion, but something less than knowledge.

[56]

But the word believes in s. 156(1)(c) is qualified by reasonable. A
    reasonable belief is one that a reasonable person would hold, based on the
    existence of some objective evidence to support the belief.

[57]

The term reasonably believes is itself qualified in some parts of s.
    156(1). For example, in s. 156(1)(c), the officer may enter any place in which
    the officer reasonably believes a contaminant
is being,
    has been or may be
discharged into the natural environment. Section
    156(1)(d) authorizes the entry into any place that the provincial officer
    reasonably believes is
likely
to contain
    documents related to certain enumerated activities.

[58]

It is of some significance that the term reasonably believes as a
    pre-condition to the exercise of warrantless inspection powers is found in
    several other statutes in Ontarios suite of environmental protection
    legislation.
[4]

[59]

In spite of this, there is no clear legal definition of the term, either
    in the statutes or in the authorities. Some assistance may be gleaned, however,
    from the case law interpreting the term reasonable ground(s) to believe in
    other statutory contexts. That case law can serve as a benchmark against which
    to measure the reasonable belief standard in s. 156(1). As is apparent from
    the case law, however, caution must be exercised because a general term such as
    reasonable ground(s) to believe takes its meaning from its context.

[60]

In
Mugesera v. Canada (Minister of Citizenship and Immigration)
,
    2005 SCC 40, [2005] 2 S.C.R. 100, the Supreme Court considered the meaning of
    reasonable grounds to believe in a regulatory context. Section 19(1)(j) of
    the
Immigration Act
, R.S.C. 1985, c. I-2, provided that [n]o person
    shall be granted admission who is a member of any of the following classes:
    persons who there are reasonable grounds to believe have committed an act or
    omission outside Canada that constituted a war crime or a crime against
    humanity.

[61]

The Supreme Court affirmed Federal Court of Appeal jurisprudence holding
    that reasonable grounds to believe requires something more than mere
    suspicion, but less than proof on the balance of probabilities. It requires
    an objective basis for the belief which is based on compelling and credible
    information:
Mugesera
, at para. 114.

[62]

In discussing this formulation of the standard, the Federal Court in
Canada
    (Minister of Citizenship and Immigration) v. U.S.A.
, 2014 FC 416, at para.
    22, noted that the standard of reasonable grounds to believe is novel given
    that beliefs are very open ended. The court explained that [r]equiring the
    belief to be reasonable brings the standard into the factually-bound legal
    world  fixing the meaning of the standard by reference to elements of its
    composition that are familiar in the juristic world.

[63]

In
U.S.A.
, the court rejected the respondents argument that
    the test under s. 19(1)(j) of the
Immigration Act
should include a
    requirement that the information be corroborated, finding, at para. 24, that
    this would impose too high a standard.

[64]

The standard articulated in
Mugesera
has been consistently
    applied in the immigration context and has also been applied by courts in other
    regulatory contexts: see e.g.
Wier v. Canada (Minister of Health)
,
    2011 FC 1322, 400 F.T.R. 212, at para. 97, involving s. 17(1) of the
Pest
    Control Products Act
, S.C. 2002, c. 28;
Lyras v. Heaps
, 2008 ONCJ
    524, 51 M.P.L.R. (4th) 277, at para. 24, involving the
Municipal Election Act,
    1996
, S.O. 1996, c. 32, Sched.

[65]

This court has recently considered the reasonable ground(s) to believe
    standard as articulated in
Mugesera
in two cases. In
Ontario
    (Registrar of Alcohol and Gaming Commission) v. 751809 Ontario Inc. (Famous
    Flesh Gordons)
, 2013 ONCA 157, 115 O.R. (3d) 24, leave to appeal refused,
    [2013] S.C.C.A. No. 259, the Registrar brought an application before the Board
    of the Alcohol and Gaming Commission pursuant to s. 15(1) of the
Liquor
    Licence Act
, R.S.O. 1990, c. L. 19 for an order revoking the respondents
    licence on the basis that reasonable grounds for belief existed that the
    respondent would not carry on business in accordance with the law and with
    integrity and honesty within the meaning of s. 6(2) of the Act.

[66]

The application was dismissed, the Registers appeal was dismissed, and
    the case was appealed with leave to this court. This court allowed the appeal
    on the basis that the board erred by applying the civil standard of balance of
    probabilities instead of the statutory standard of reasonable grounds for
    belief:
Famous Flesh Gordons
, at paras. 18-24. In describing the
    statutory standard, the court noted that there is no doubt that this is a
    lower standard than a balance of probabilities and cited para. 114 of
Mugesera
as dealing with this standard, one commonly used in regulatory statutes:
Famous
    Flesh Gordons
, at para. 18.

[67]

Some assistance is also found in the decision of this court in
1704604
    Ontario Ltd. v. Pointes Protection Association
, 2018 ONCA 685, 142 O.R.
    (3d) 161, one of six appeals heard together to consider s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, commonly referred to as the
    anti-SLAPP (strategic lawsuits against public participation) provisions.

[68]

Section 137.1(3) requires a judge to dismiss a proceeding against a
    person if that person satisfies the judge that the proceeding arises from an expression
    made by the person that relates to a matter of public interest. An exception
    exists, which provides that a judge shall not dismiss a proceeding if the
    responding party (the plaintiff) satisfies the judge, among other things, that
    there are grounds to believe that the proceeding has substantial merit and
    the moving party has a valid defence in the proceeding: s. 137.1(4)(a)
[5]
.

[69]

Doherty J.A., speaking for the court, found that the use of the word
    satisfies in s. 137.1(4) indicated that the applicable standard was a balance
    of probabilities. It was argued on a number of the appeals that the absence of
    the modifier reasonable in front of grounds to believe in s. 137.1(4)(a)
    signaled a lower standard than reasonable grounds to believe. Doherty J.A.
    found that the word reasonable was implied in the text. He stated, at para.
    69 of
Pointes
:

Although the word "reasonable" does not appear in
    the text, I think it is implicit. The section requires a judicial assessment of
    the potential strength of the plaintiff's claim and the availability of any
    valid defence to the claim. Judicial decision-making is antithetical to
    decisions based on unreasonable or speculative grounds. A statute that requires
    a judge to have "grounds to believe" implicitly requires that those
    grounds be reasonable.

[70]

Further assistance is provided by another decision in the anti-SLAPP
    sextet,
Platnick v. Bent
, 2018 ONCA 687, 23 C.P.C. (8th) 275. There,
    in interpreting the onus of proof under s. 137.1(4)(a) of the
Courts of
    Justice Act
, the motion judge had adopted the standard of reasonable
    grounds to believe as set out in
Mugesera
, namely that there must be
    an objective basis for the belief which is based on compelling and credible
    information and adapted it to the circumstances of the provision:
Platnick
    v. Bent
, 2016 ONSC 7340, 136 O.R. (3d) 339, at paras. 84, 86, citing
Mugesera
,
    at para. 114. Doherty J.A., at paras. 47-48, rejected this standard on the
    basis that the regulatory context at issue in
Mugesera
was
    distinguishable due to the nature of the proceeding, the task of the decision
    making body, and the substantive outcome of the process:

The kind of determination under consideration in
Mugesera
was very different from the determination a motion judge must make on a s. 137.1
    motion. In
Mugesera
, the Immigration and Refugee Board (Appeal
    Division), after hearing 24 days of evidence, had to decide whether there were
    reasonable grounds to believe that Mr. Mugesera had committed war crimes and
    crimes against humanity. This involved determining whether there were
    reasonable grounds to believe that certain facts existed which, as a matter of
    law, would constitute such crimes. The description of the reasonable grounds to
    believe standard as requiring "compelling and credible information"
    was made in the context of a fact-finding exercise carried out after a hearing
    that lasted over three weeks. Mr. Mugesera's right to stay in the country
    hinged on that fact-finding.

A motion judge conducting a s. 137.1 motion does not make
    findings of fact under s. 137.1(4)(a).  In my view, the phrase
    "reasonable grounds to believe" used in the context of s. 137.1 calls
    for a less demanding inquiry than s. 19 of the
Immigration Act
required.

[71]

Doherty J.A., at para. 49, further noted that the standard in
Mugesera
invites the decision maker or reviewing body to assess the merits or
    credibility of the information, rather than focusing on the issue of whether
    the record discloses a reasonable basis for the requisite belief:

Nor, in my view, is it simply a matter of word choice. I think
    the phrase "compelling and credible information" can easily lead a
    motion judge into an assessment of the ultimate merits of the case and the
    credibility of the claimants. As explained in
Pointes
, at paras.
    78-82, the issue for the motion judge is not the ultimate strength of the claim
    or the believability of the plaintiff, but only whether the record provides a
    reasonable basis for believing the claim has substantial merit and that there
    is no valid defence.

[72]

As the foregoing review suggests, the precise requirements necessary to
    meet a commonly used statutory standard are driven primarily by the context in
    which it is applied. However, some principles guiding the interpretation of
    reasonable ground(s) to believe can be distilled from the case law. First,
    the use of the word reasonable to qualify the standard of belief suggests
    that there must be an objective basis for the belief. Second, the requirements
    are informed by the degree of scrutiny to which the basis of belief is
    subjected. This, in turn, is informed by the circumstances in which the
    decision is made; the procedure involved; and the ultimate purpose of the
    decision resulting from the application of the standard. Finally, reasonable
    grounds to believe has been interpreted in the regulatory context as requiring
    something more than mere suspicion, but something less than proof on a balance
    of probabilities.

[73]

With these observations, I turn now to an interpretation of reasonable
    belief in the context of s. 156(1) of the
EPA
.

(d)

The interpretation of s. 156(1)(c)

[74]

The contextual difference between the standard of reasonable ground(s)
    to believe as articulated in
Mugasera
, and applied in cases like
Flesh
    Gordons
, and the standard of reasonable belief in the context of s.
    156(1) is significant. Under s. 156(1), there is no independent scrutiny or assessment
    of the reasonable belief. It is the provincial officers own belief in the
    circumstances that is at issue. Judicial assessment occurs if the officers
    inspection is frustrated or impeded and a judicial order is required under s.
    158. In such cases, a justice must be satisfied that there is reasonable
    ground to believe that the inspection power under s. 156 should be invoked.
    While both s. 156(1) and s. 158(1) invoke a standard of reasonable belief, the
    precise requirements for meeting the threshold of reasonable belief are
    informed by the distinct circumstances in which they are engaged.

[75]

The determination of whether the standard under s. 158(1) is met is made
    by a judicial officer reviewing the request of the MOE for an order to conduct
    the inspection prompted by the circumstances enumerated in s. 156(1). As such,
    the nature of the reasonable belief must be communicated on evidence-based
    grounds, and subjected to a judicial assessment and weighing of the
    circumstances. Under s. 156(1), the reasonable belief is that of the provincial
    officer and accordingly invokes a subjective component which is engaged in an immediate
    and reactive manner. The requirement of reasonableness directs that this
    subjective belief must have an objective basis at the time that it is formed.

[76]

While the provincial officer may be required to explain his or her
    belief after the fact, as is the situation in this case, the reasonableness of
    the belief is based on the provincial officers assessment of the information
    available at the time the power of inspection is invoked. The provincial officer
    is not required to engage in the kind of weighing of evidence that a justice
    would undertake under s. 158(1).

[77]

Having regard to the purpose and scheme of the
EPA
, the nature
    of the harm it seeks to prevent, and the need to promptly and efficiently
    investigate and respond to potential environmental harm, it is my view that
    reasonable belief in s. 156(1) describes a low threshold. The standard
    requires a subjective belief that is reasonable in light of the information
    available to the provincial officer in the circumstances. It requires the
    ability to articulate, after the fact, the provincial officers assessment of
    the information available to him or her at the time.

[78]

Accordingly, I conclude that a provincial officer may make an inspection
    under s. 156(1)(c) where there is a nexus between the purpose of the entry and
    the protective, preventative, or remedial purposes of the
EPA
, and an
    objective and reasonable basis for the provincial officer to believe that a
    contaminant was, has been, or may be discharged into the natural environment.
    This is consistent with the purpose of the inspection power and the context in
    which it is exercised.

[79]

Regulatory inspections frequently take place, not to investigate
    non-compliance, but to promote and ensure compliance. Regulatory inspection
    powers are based on the common sense assumption that the threat of unannounced
    inspection may be the most effective way to induce compliance:
R. v.
    McKinlay Transport Ltd.
, [1990] 1 S.C.R. 627, at p. 645.

[80]

Because regulatory inspections focus on compliance rather than penal
    liability, they necessarily take place before there are grounds to believe an
    offence has been committed:
R. v. Nicol
(1997), 114 C.C.C. (3d) 570
    (Ont. C.A.), at p. 572, [i]t is the very nature of an administrative inspection
    that it takes place when there are not reasonable grounds to believe that a
    particular offence has been committed.

[81]

The distinction between search powers (s. 161) and inspection powers
    (ss. 156, 158) in the
EPA
confirms that the focus of s. 156(1) is on
    inspection for the purpose of prevention, compliance, and enforcement, rather
    than investigation, evidence-gathering, and prosecution.

[82]

Inspection is a baseline step through which the
EPA
monitors
    activities. Based on inspections, remedial measures, compliance orders, or
    other regulatory mechanisms may be engaged. A lower standard gives effect to
    the precautionary principles affirmed by the Supreme Court in
Castonguay
,
    at para. 20, and provides flexibility and responsiveness to situations on the
    ground that may require prompt action, beginning with inspection. It also
    recognizes that the expertise for assessing potential environmental effects
    lies with the MOE, as was discussed by the court in
Castonguay
: at
    paras. 18-19.

[83]

Given the harm caused by release of contaminants and the potential
    damage caused by a failure to remediate, MOE inspectors must be able to act
    swiftly and effectively. A standard of reasonable belief, rather than the
    more onerous standard of reasonable and probable grounds engaged in other
    provisions of the Act, allows for less time-consuming and intrusive
    fact-finding, given the need for prompt and effective action.

[84]

This lower standard applicable to inspection powers is subject to
    appropriate statutory limits and safeguards. Section 156(5) provides that a
    provincial officer may not enter a room actually used as a dwelling without the
    consent of the occupier, except under the authority of an order under s. 158.
    Further balance is provided by s. 158(1), which provides that where a person
    (such as the respondent) has prevented the provincial officer from exercising
    the inspection powers in ss. 156(1) or (2), or s. 156.1, the provincial officer
    must obtain a judicial order for entry or inspection. Thus, it is open to an
    individual who believes that inspection powers are being engaged in an
    unreasonable or abusive manner to refuse inspection of their property in the
    absence of judicial authorization. These provisions provide an appropriate
    balance between the public interest in ensuring regulatory compliance and
    individual privacy rights.

(e)

Application to this case

[85]

Returning to the circumstances of this case, in my respectful view,
    neither the POAC judge nor the justice of the peace at first instance
    accurately expressed the test for reasonable belief under s. 156(1).

[86]

Although the POAC judges analysis is not entirely clear from his brief
    reasons, he appears to have concluded that the information given by the bylaw
    officer to the MOE did not provide a sufficient basis for the provincial
    officers reasonable belief. It is not clear from his reasons that the POAC
    judge appreciated that smoke itself is a contaminant regulated under the
EPA
:
    see s. 1(1), discussed below.

[87]

While the trial justice appropriately recognized that the nature of a
    regulatory inspection dictated a lower standard than reasonable and probable
    grounds, he set the bar too high when he adopted and applied the test from
Debot
applicable to informant tips in a criminal context.

[88]

The
Debot
requirement that the information be compelling,
    credible, and corroborated is inconsistent with the preventative and
    protective purpose of regulatory inspections under the
EPA
.

[89]

Inspections cover a broad range of situations  from routine, scheduled
    visits to random spot checks to rapidly evolving exigent situations. As the
    appellant noted in oral argument, a requirement of corroboration or the
    assessment of credibility or reliability of complainants would require
    provincial officers to engage in more detailed investigation than the circumstances
    permit.

[90]

Moreover, a requirement that the information be compelling is not
    necessarily consistent with the nature of the regulatory context of the
EPA
.
    As the Supreme Court noted in
Castonguay
, the environmental impact of
    a given activity may not be immediately apparent to an average citizen or even
    to MOE experts until an inspection takes place. There are inherent limits on
    the ability to determine and predict environmental impacts: at paras. 19-20.
    Accordingly, the bottom line conclusion the Supreme Court reached, at para 2,
    in
Castonguay
regarding the scope of the reporting requirement under
    s. 15(1) of the
EPA
was: when in doubt, report.

[91]

In this case, the provincial officer exercised his inspection powers on
    the basis of a report made by the bylaw officer that very day, communicating the
    bylaw officers own observations of the property and a report from a neighbour.
    The reports were that waste was being brought onto the property and smoke was
    being generated from an open fire.

[92]

Smoke is regulated by the
EPA
and falls within the definition
    of a contaminant if it causes or
may
cause an
    adverse effect, including the impairment of the natural environment or an
    adverse effect on the health of any person: s. 1(1). See also
Ontario v.
    Canadian Pacific Ltd.
, [1995] 2 S.C.R. 1031, at paras. 63, 72, per.
    Gonthier J.;
Rousseau v. McNab-Braeside (Township)
(2001), 25 M.P.L.R.
    (3d) 267 (Ont. S.C.), at paras. 81, 93.

[93]

In my view, the information received by the provincial officer prior to
    his attempt to enter the respondents property was sufficient to support the
    existence of a
reasonable belief
that a
    contaminant was being or had been discharged into the natural environment as a
    predicate to the exercise of the provincial officers s. 156(1) inspection
    powers. The information was communicated to the provincial officer by the bylaw
    officer, a person in a position of authority with responsibility for such
    matters. The information was objective. The neighbour was identifiable and had
    communicated directly with the bylaw officer. The bylaw officers information
    included direct personal observations of the fire. The information was
    probative of the discharge of a contaminant into the natural environment and the
    purpose of the provincial officers proposed inspection had a clear nexus to
    the purposes of the
EPA
. The provincial officers testimony
    established a reasonable objective basis for his belief and permits the
    conclusion that his belief was reasonable.

VI.

conclusion

[94]

For these reasons, I conclude that the provincial officer met the
    standard to engage his authority to inspect the respondents property under s.
    156(1)(c). The information provided to the provincial officer by the bylaw
    officer from his own personal observations and his conversations with the
    respondents neighbour, was sufficient to support the provincial officers
    reasonable belief that a contaminant, namely smoke, was being, had been, or
    would be discharged into the natural environment.

[95]

I would allow the appeal, set aside the acquittal, and restore the
    conviction entered by the justice of the peace.

Released: GS  DEC 14  2018

George R. Strathy
    C.J.O.

I agree. Doherty J.A.

I agree. Roberts J.A.

Appendix

Environmental
    Protection Act
, R.S.O. 1990, c. E.9

156(1)
For the
    administration of this Act or the regulations, a provincial officer may,
    without a warrant or court order, at any reasonable time and with any
    reasonable assistance, make inspections, including,

(a) entering
    any part of the natural environment to ascertain the extent, if any, to which
    contaminants have caused an adverse effect, the causes for any adverse effect,
    and how any adverse effect may be prevented, eliminated or ameliorated and the
    natural environment restored;

(b) entering
    any place in which the provincial officer reasonably believes can be found
    anything that is governed or regulated under this Act or anything the dealing
    with which is governed or regulated under this Act;

(c) entering
    any place in or from which the provincial officer reasonably believes a
    contaminant is being, has been or may be discharged into the natural
    environment;

(d) entering
    any place that the provincial officer reasonably believes is likely to contain
    documents related to,

(i) an activity
    or undertaking that is, or is required to be the subject of a permit, licence,
    approval, environmental compliance approval, certificate of property use,
    renewable energy approval, program approval, agreement or order under this Act,

(ii) an
    activity that is or is required to be registered under Part II.2,

(ii.1) an
    activity or undertaking that is exempted by a regulation from any requirement
    to have a permit, licence, environmental compliance approval or renewable
    energy approval under this Act that is regulated by the provisions of the
    regulation, or

(iii) the
    discharge of a contaminant into the natural environment;

(e) entering
    any place that the provincial officer reasonably believes,

(i) is,
    or is required to be, subject to or referred to in a permit, licence, approval,
    environmental compliance approval, certificate of property use, renewable
    energy approval, program approval, agreement or order under this Act,

(ii) is
    or is required to be subject to or referred to in a registration under Part
    II.2, or

(iii) is
    subject to or referred to in a regulation that provides for an exemption from
    any requirement to have a permit, licence, environmental compliance approval or
    renewable energy approval under this Act where the regulation includes
    provisions that regulate the place;

(e.1)
    entering any property for which a record of site condition has been submitted
    for filing or has been filed in the Environmental Site Registry established
    under section 168.3 for the purpose of sampling, testing or examining anything
    referred to in the record of site condition;

(f) entering
    any place where a motor, motor vehicle or beverage container regulated under
    this Act is stocked, displayed, sold or offered for sale, to carry out his or
    her duties under Part III or IX, as the case may be;

(g) entering
    any establishment for the repair of motors or motor vehicles, to carry out his
    or her duties under Part III;

(h) entering
    any ice shelter to carry out his or her duties under Part IV;

(i) entering
    any abandoned motor vehicle to carry out his or her duties under Part VII;

(j) entering
    any place where the provincial officer reasonably believes the permit and
    plates of a vehicle may be found, in order to seize them in accordance with
    section 48 or 49; and

(k) entering
    any place where a pollutant as defined in Part X is spilled.

156(2)
During
    an inspection under subsection (1), the provincial officer may,

(a) make
    necessary excavations;

(b) require
    that any thing be operated, used or set in motion under conditions specified by
    the provincial officer;

(c) take
    samples for analysis;

(d) conduct
    tests or take measurements;

(e) examine,
    record or copy any document or data, in any form, by any method;

(f) record
    the condition of a place or the natural environment by means of photograph,
    video recording or other visual recording;

(g) require
    the production of any document or data, in any form, required to be kept under
    this Act and of any other document or data, in any form, related to the
    purposes of the inspection;

(h) remove
    from a place documents or data, in any form, produced under clause (g) for the
    purpose of making copies; and

(i) make
    reasonable inquiries of any person, orally or in writing.

156 (3)
A
    record made under clause (2) (f) must be made in a manner that does not
    intercept any private communication and that accords with reasonable
    expectations of privacy.

156 (3.1)
A
    provincial officer shall not remove documents or data under clause (2) (h)
    without giving a receipt for them and shall promptly return the documents or
    data to the person who produced them.

156 (4)
A
    provincial officer who exercises the power set out in clause (2) (i) may
    exclude from the questioning any person except counsel for the individual being
    questioned.

156 (5)
A
    person shall not exercise a power conferred by this Act to enter a room
    actually used as a dwelling without the consent of the occupier except under
    the authority of an order under section 158.

156 (6)
Repealed.

[1]
The full text of s. 156 is set out in the Appendix.

[2]
See e.g. s. 5 (investigation and prosecution where provincial officer
    reasonably believes a person is guilty of an offence under the Act); s. 48(2)
    (seizure of permit and number plates for vehicle reasonably believed to be used
    in connection with commission of an offence); s.156.4(1)-(2) (issuance of an
    order prohibiting entry into all or part of any land or place); s. 157.1
    (issuance of an order by provincial officer re: preventative measures); s.
    157.4 (issuance of notice by provincial officer regarding reasonable belief
    that person is contravening or has contravened a regulation under Part II.2);
    s. 160 (seizure during an inspection without a warrant or court order); s.
    161(3) (seizure during warrantless search in exigent circumstances); and s. 163
    (use of force to prevent destruction of evidence or execute a warrant under the
Provincial Offences Act
).

[3]
See e.g. s. 8 (stop orders); s. 12 (stop or control orders); 18(2)
    (preventative measure orders). See also s. 26 (application of waste management
    provisions to disposal of waste on a persons own property); s. 132 (financial
    assurances approval or order); and s. 136(2) (use of financial assurances
    arising from an order).

[4]
See e.g.
Pesticides Act
, R.S.O.
    1990, c. P.11, s. 19(1) (warrantless inspection powers);
Ontario Water Resources Act
, R.S.O. 1990,
    c. O.40, ss. 15(c)-(e) (warrantless inspection powers);
Safe Drinking Water Act
,
2002
,
    S.O. 2002, c. 32, ss. 81(2)2-6 (warrantless inspection powers);
Freshwater Fish Marketing Act (Ontario)
,
    R.S.O. 1990, c. F.33, ss. 5(1)(a)-(b) (inspection powers).

[5]
(4) A judge shall not dismiss a proceeding under subsection (3) if the
    responding party satisfies the judge that,

(a) there are grounds to
    believe that,

(i) the proceeding has
    substantial merit, and

(ii) the moving party has
    no valid defence in the proceeding; and

(iii) the harm likely to be
    or have been suffered by the responding party as a result of the moving partys
    expression is sufficiently serious that the public interest in permitting the
    proceeding to continue outweighs the public interest in protecting that
    expression.