SPECIAL EDITION – FALL 2017
MNRF CONSERVATION OFFICERS TRESPASSING ON POSTED PRIVATE PROPERTY WITH NO REASONABLE INDICATIONS OF ANY INFRACTIONS
Imagine for a moment that you own 125 beautiful acres of prime forested land in a rural, peaceful and secluded area. The perimeter of this land is prominently posted as private property, no trespassing, and is not abutting any Crown lands. You live there because you love nature and cherish your legal right to privacy and freedom.
What would your reaction be if MNRF Conservation Officers (C.O.’s) completely ignored the No Trespassing signs and, without asking permission, entered deep into your property to look for possible infractions, which amounts to a search of your property, without any reasonable or probable grounds to believe anything was amiss, just because they felt that there may be a very remote possibility that someone, anyone, just might also be trespassing and hunting and just possibly breaching Fish & Wildlife Regulations?
REASONABLE AND PROBABLE GROUNDS ABSENT:
Sounds too far-fetched, do you think? Surely, the Ontario Ministry of Natural Resources and Forestry (MNRF) would not actually resort to using the provisions of the Fish and Wildlife Conservation Act (FWCA) and the Trespass to Property Act as a SWORD against the former OntORA (Oswald Lake case) and also on an ongoing basis against an unknown number of anglers, hunters, hikers and campers – and then attempt to use these provisions as a SHIELD for their unwarranted trespassing on private land? Really? The short answer is – yes, it appears that they are – and OntORA is supporting the courageous and informed OntORA member who is taking his case to the Small Claims Court with his lawyer, Kenneth Walker of Sault Ste. Marie. While a Small Claims Court may not be able to offer the correct remedy, what is needed is a court declaration that the MNRF must abide by the governing legislation and desist from picking and choosing which Acts, statutes or sections it intends to follow, and which it intends not to follow.
FACTS OF THE CASE:
On Saturday, April 25, 2015, that’s exactly what happened to a peaceful, law-abiding and respectful gentleman, Mr. Clive Henderson, a recent welcomed addition to the ranks of OntORA, who lives alone on his personal 125-acre utopia on St. Joseph’s Island. On that date two uniformed Conservation Officers (C.O.’s) (one whom is well known to the victim) trespassed on his property and clearly did not have any reasonable or probable cause to believe that any offence was being, or about to be, committed on that property. For that reason, landowner Henderson felt that they did not have the right to enter private property without permission and that he, as the landowner, was being subjected to an unlawful search of his property for unknown, unseen and non-existent “offenders”. Henderson politely suggested to the C.O.’s that they were trespassing, but the Conservation Officers flippantly replied that they were taking photos of the landowner’s “no trespassing” signs and insisted that they had a right to trespass anywhere at any time.
POLICE DECLINED TO LAY CHARGES:
After a polite request to the MNRF for an apology and to desist from their unwarranted trespassing on his property was refused outright, Henderson requested that the OPP lay a trespassing charge against the Conservation Officers. An investigation was conducted by an O.P.P. Constable (incident #NP15065219) on June 5/2015. The investigating Constable called Henderson several hours later to inform that she had spoken to the senior C.O. concerned and that he was of the opinion that he had statutory authority to access the property. The Constable indicated that Henderson’s recollections of the events of April 25/2015 were correct and confirmed by the C.O., but that the O.P.P. would, nevertheless, not be laying a charge.
CROWN ATTORNEY WITHDRAWS CASE:
After the O.P.P. refused to lay charges, Clive Henderson personally laid an information document before a Justice of the Peace on June 26, 2015. Henderson then attended an “in camera” session with another Justice of the Peace on July 7, 2015 and the J.P. was satisfied that a summons should be issued to bring the C.O. before the court to answer the charge. He set the court date for August 25, 2015. The C.O.’s lawyer asked for time to prepare and another court date was set for October 8, 2015. On that date, the Crown Attorney for the region showed up and informed the court that the Crown was intervening and requesting that the matter be withdrawn. In an unusual and surprising move, the presiding Justice then asked Clive Henderson if he had anything to say about the Crown’s request. The following is the verbatim statement that Clive Henderson made to the court regarding the unilateral withdrawal of the case by the Crown Attorney without any verification of the facts with the victim who initiated the court case:
CLIVE HENDERSON’S STATEMENT TO THE COURT:
“Though my career as a prosecutor has been cut short, I do not take this as a total loss as I have learned a great deal through-out the process; and knowledge liberates whereas ignorance enslaves. Judge Brandeis said “When government becomes a law breaker, it breeds contempt for law”, though generally true; I feel no contempt for the law or the government as both can be great allies of freedom and democracy.
When the Crown Attorney “copied” me on a letter she sent to the MNR assuring them that this prosecution would not go forward; I asked if she would revisit that decision. The Crown attorney never responded; nor at any time has she ever asked for evidence from the alleged victim in this case; she seems to have relied solely upon information provided by the accused. I could go on for quite some time, but this stage is over so let me close with a couple of comments: Though the Attorney General’s office has absolute discretion in this venue; they will be powerless to rescue the MNR from the torts of Trespass and Intrusion upon Seclusion in the upcoming civil case I will be bringing. I ask that the MNR remember all I initially asked for was an apology. Good law is based upon the golden rule. There are no employees of the MNR who would want me wandering around their private property; I have that same expectation of privacy.”
CROWN ATTORNEYS’ OATH OF OFFICE:
Regarding Henderson’s point of asking the Crown Attorney earlier to revisit the case, he wrote the Crown a very detailed letter dated September 22, 2015, over two weeks before the court case. He pointed out the obvious flaws in the C.O.’s defence of their “statutory” right to trespass and cited Canadian court precedents that go to the very heart of the issue of warranted and unwarranted trespass by C.O.’s in the performance of their duties, all of which were ignored. Henderson never received an acknowledgement or reply from this Crown Attorney.
Clive Henderson also points out that the standard oath of office that all Crown Attorneys must take on being appointed is the one that says that they promise to carry out their duties to best of their abilities “without fear or affection for any party.”
Former Supreme Court of Justice Peter Cory, in his report for the Sophonow Inquiry, noted that Crown Attorneys “must proceed with the case against the accused fairly and courageously…. Even in the face of threats and attempts at intimidation”.
For prosecuting Crown Attorneys, the focus cannot be on getting to conviction, or competing with defences counsel, or carrying out the wishes of the investigative agency.
LEGAL SCOPE: UNREASONABLE SEARCH & SEIZURE VIOLATES CANADIAN CHARTER:
With the advent the Canadian Charter of Rights and Freedoms, the sanctity of an individual’s privacy has been given constitutional protection. This protection manifests itself from section 8 of the Charter which prohibits “unreasonable search and seizure”. In analyzing section 8 of the Charter, the Supreme Court of Canada has affirmed that, as a default position, warrantless searches and/or seizures violate section 8 of the Charter and are therefore unconstitutional.
In interpreting the scope of the constitutional protection afforded by this section, the Supreme Court of Canada has concluded in Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., that a warrantless search presumptively violates section 8 of the Charter. The Supreme Court of Canada has further affirmed that two distinct inquiries must be made to determine whether this section is properly invoked in a particular situation:
i. Whether the person seeking the section 8 protection has a reasonable expectation of privacy. If this question is answered in the affirmative, the inquiry must proceed to the following stage, namely:
ii. Whether the impugned search and/or seizure were conducted in a reasonable manner.
Further, the Supreme Court stated that a determination of whether there is a reasonable expectation of privacy must be made based on the totality of the circumstances. A non-exhaustive list of the factors to be considered during this assessment includes:
a. Presence at the time of the search;
b. Possession or control of the property or place searched;
c. Ownership of the property or place;
d. Historical use of the property or item;
e. The ability to regulate access, including the right to admit or exclude others from the place;
f. The existence of a subjective expectation of privacy; and
g. The objective reasonableness of the expectation.
In deciding if a particular governmental intrusion should be tolerated by the citizenry under s. 8 of the Charter, courts must consider whether the “particular form of unauthorized surveillance in question would see the amount of privacy and freedom remain to citizens diminished to a compass inconsistent with the aims of a free and open society.
In contrast, if one assumes the risk by exposing a private place to public view then reasonable expectations of privacy are lost, government deception is irrelevant to the constitutional equation. (Mr. Henderson, by putting up numerous signs on a lengthy driveway indicating that the government was not to trespass, cannot be said to expose him to the loss of his reasonable expectation of privacy. He did everything in his power to maintain this privacy)
VICTIM SHARED LEGAL PRECEDENTS & ASKED CROWN ATTORNEY TO RECONSIDER:
Below are the topics of the legal precedents and considerations which were sent by Clive Henderson to the Crown Attorney, who nevertheless killed the court case:
Justice Laforest’s view in R. v. Dyment, 1988 Can L II 10 (SCC): “Grounded in man’s physical and moral autonomy, privacy is essential for the wellbeing of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”
Justice A. Moldaver – Ontario Court of Appeals: “Turning next to the nature of the uses to which unoccupied lands can be put, I think it is self-evident that Canadians engage in precisely the same activities as those mentioned by Marshall J. There is no need to repeat them. Suffice it to say that they are all legitimate activities and as a society, we adhere to the belief that people should be free to enjoy their privacy without fear of intrusion by members of the public or government officials.”… “That said, I am not unmindful of the fact that for some, unoccupied lands provide an ideal setting for criminal activity. The case at hand is a good illustration. But in deciding whether the values enshrined in s. 8 of the Charter are meant to apply to unoccupied lands, it would be wrong to approach the issue from the point of view that privacy will only be used to shelter criminal behaviour. Rather, the starting point for purposes of the s. 8 analysis should be that law-abiding citizens have a strong interest in privacy that the Charter is meant to protect. Inevitably, this approach will result in some criminal activity going undetected, but that is a price society must pay to secure the rights of all of us.”
The Trespass to Property Act and Section 94 of the Fish and Wildlife Conservation Act: While Section 94 of the FWCA may permit C.O.’s to enter upon private property only in certain circumstances, such authority or permission is subject to other provisions of the Act in its entirety. In the present case, there was clearly no reasonable or probable grounds to suspect any infractions had been or were about to be committed, so the entry without permission was unwarranted, intrusive and denied the landowner the privacy and freedom from unlawful searches to which he is legally and constitutionally entitled.
If, however, the government “becomes a law breaker, it breeds contempt for law” (Brandeis, J. in Olmstead v. U.S. (1928), 277 U.S. 438 at 485).
Crown Law in Canada, Butterworths, Toronto, 1991, written by Paul Lordon. The author comments that “Crown immunities” serve as defences and protection for Crown servants acting within the scope of their authority, but are not generally viewed as capable of granting authority to do the act which they otherwise serve to justify or indemnify.
THIS CASE MAY BE THE TURNING POINT:
If successful, this case may finally be the start of the turning point in the legal conundrum that many Conservation Officers have purposefully or unwittingly used to inappropriately trespass on private lands without justifiable reasons to facilitate their laying of charges under the FWCA.
Not many Justices of the Peace will question the intent or appropriateness of charges initiated by C.O.’s against accused in their courtrooms. Not many accused can afford a lawyer to represent them, and most are aware of, and possibly intimidated by, the abysmal historical record of near-automatic wins by the MNRF prosecutors in cases before Justices of the Peace.
We sincerely hope that this is finally a wakeup call for a review of the parameters under which the MNRF enforcement is carried out according to existing legislation that should apply to all parties.
John Kallio, President
JKallio@Shaw.ca – (705)949-9375