For a decade, there has been a tug of war between MOE investigators and potential defendants. Since the 1988 amendments to the Environmental Protection Act, MOE inspectors have had statutory power to make reasonable inquiries of any person (s. 156). Equally important, those questioned have a statutory obligation not to lie (i.e., not to provide false information to a provincial officer) and must provide inspectors with certain regulatory information. In particular, abatement officers have an immediate right to information needed to deal with a current environmental emergency.

Investigators normally enjoy the same powers as inspectors. However, thanks to the Canadian Charter of Rights and Freedoms, an investigator cannot use the powers of an inspector once he or she has reasonable and probable grounds to believe that an offence has been committed. At that point, the balance of interest shifts, and those questioned have a right to keep silent, at least about past events. See, for example, the 2001 decision of the Ontario Court of Appeal in the long running R v. Inco case.

This has not been the end of the story.

Section 163.1 was added to the Environmental Protection Act in response to the Charter cases. It allows justices of the peace to authorize investigators to use the same investigative powers that are given to an inspector under Section 156, even after they have reasonable and probable grounds to believe that an offence has been committed. Thus, s. 163.1 clearly allows investigators (armed with an ex-parte court order) to ask questions. But must the questions be answered?

At Paragraph 38 of Inco, the Court of Appeal made a passing reference to the then-new s. 163.1. Based on this obiter comment, the Ministry has frequently used s. 163.1 to force potential witnesses and defendants to submit to interrogation. Few in the defence bar agreed with this interpretation, but no one wanted to pay to challenge it.

Early this year, the Ontario Divisional Court finally put this threat to rest. In Branch v. Ministry of the Environment, a ministry investigator obtained an order from a justice of the peace requiring the manager of a hazardous waste facility to submit to interrogation about a fire. The manager, Michael Branch, successfully sought judicial review. The court unanimously struck down the order, ruling that Section 163.1 gives a justice of the peace no authority to order anyone to answer questions or to produce documents. The investigator can request responses from a potential witness or defendant, but cannot compel them. The court noted that there are many statutes that grant power to investigators, to force individuals and corporations to answer questions and produce documents, sometimes with and sometimes without prior judicial authorization. In contrast, s.163.1 may authorize inspectors to use investigative techniques, but does not mention responses by third parties. The court also noted that third-party compulsion was not discussed in the legislature when Section 163.1 was passed, nor in the factums put to the Court of Appeal in R v. Inco.

As a result, it is now clear that Ontario environmental investigators cannot compel anyone to answer their questions or produce documents, once they have reasonable and probable grounds to believe that an offence has been committed. If investigators wish to obtain documents, they can, of course, obtain a search warrant. But they cannot compel potential defendants or witnesses to answer their questions.

In another interesting comment, the court refused to defer to the MOE's opinion of s. 163.1. The court said that the regulator's opinion of its own powers was irrelevant to the proper interpretation of those powers. PE