On January 7, 2009, the Ontario Superior Court of Justice (Divisional Court) granted an application for judicial review challenging the lawfulness of an Order to Obtain Information that had been obtained by a Ministry of the Environment (MOE) investigator pursuant to Section 163.1(2) of the Environmental Protection Act (the EPA). The investigator had obtained the order from a justice of the peace for the purpose of compelling the manager of a company being investigated to submit to an interview and produce documents. The Ontario Superior Court of Justice quashed the order, finding that Section 163.1(2) does not confer authority to order a person to appear to answer questions nor to produce documents.
Section 163.1(2), added to the EPA in 1998, states that a justice of the peace "may issue an order in writing authorizing a provincial officer … to use any device, investigative technique or procedure or to do anything described in the order if the justice is satisfied by evidence under oath that there are reasonable grounds to believe that an offence against this Act has been or will be committed and that information concerning the offence will be obtained through the use of the device, technique or procedure or the doing of the thing."
As a result of comments made by Chief Justice McMurtry of the Ontario Court of Appeal in his 2001 decision in R. v. Inco Ltd., the MOE has taken the view that Section 163.1(2) authorizes an order to compel an employee or other witness to answer questions or provide documents and has obtained many Orders to Obtain Information for this purpose. These have been commonly referred to as "Inco Orders."
In R. v. Inco Ltd., Chief Justice McMurtry stated, in obiter, that an officer who has reasonable and probable grounds to believe an environmental offence has been committed could apply for judicial authorization to conduct questioning sessions under Section 163.1(2) of the EPA. However, as noted by this court, the comments of Chief Justice McMurtry in Inco were not intended to set out the definitive interpretation of Section 163.1(2). As such, this court found that it was not bound by the statements in Inco concerning Section 163.1(2) as "they do not reflect a close examination of the words of the provision in context."
The court agreed with the applicant and found that the grammatical and ordinary sense of the wording of Section 163.1(2) did not give a justice of the peace authority to make an order directed at compelling a witness to appear and answer questions or produce documents. Justice Swinton referred to the wording of various other Ontario statutes ? which, in contrast to Section 163.1(2) of the EPA, contain language that specifically and explicitly provides the power to compel persons to answer questions ? noting that most of such statutes allow witnesses to claim privilege and provide protection against self-incrimination (also in contrast to Section 163.1(2) of the EPA, which provides no such protection). The court concluded that the absence of such explicit language in Section 163.1(2), together with the legislative history related to this section, suggest that the legislature did not intend to include powers of compulsion in Section 163.1(2). The court quashed the Order to Obtain Information.
This decision is significant as it clarifies that MOE investigators cannot use Section 163.1(2) to compel witnesses to answer questions and provide documents.