A recent Ontario Court of Appeal decision1 has left intact the decision of the Ontario Superior Court of Justice on the issue of investigative powers under section 56 of Ontario’s Occupational Health and Safety Act ("OHSA"). This decision also has important ramifications for government investigations undertaken pursuant to environmental legislation. Environmental investigations are often commenced under the authority of provisions that are similar to section 56 of OHSA.
The case at issue, Morrison et al. v. Butson,2 involved a gas explosion accident which occurred in Toronto in 2003 and left a number of people dead and injured. Prosecutors in the case had obtained a number of search warrants under section 56 of the OHSA which they intended to use to question certain persons involved in the gas explosion accident (the "Applicants"). The Applicants challenged the warrants.
Section 56 of the OHSA allows warrants to be issued authorizing a Ministry of Labour inspector to use a number of investigative techniques or procedures to obtain information and evidence concerning an offence under the OHSA. Section 56(1.2)(f) allows the warrant to permit the inspector to "make inquiries of any person either separate and apart from another person or in the presence of any other person." Section 56, states:
Warrants – investigative techniques, etc.
56. (1) On application without notice, a justice of the peace or a provincial judge may issue a warrant authorizing an inspector, subject to this section, to use any investigative technique or procedure or to do any thing described in the warrant if the justice of the peace or provincial judge, as the case may be, is satisfied by information under oath that there are reasonable grounds to believe that an offence against this Act or the regulations has been or is being committed and that information and other evidence concerning the offence will be obtained through the use of the technique or procedure or the doing of the thing.
(1.1) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the inspector in the execution of the warrant.
Terms and conditions of warrant
(1.2) The warrant shall authorize the inspector to enter and search the place for which the warrant was issued and, without limiting the powers of the justice of the peace or the provincial judge under subsection (1), the warrant may, in respect of the alleged offence, authorize the inspector to,
(a) seize or examine and copy any drawings, specifications, licence, document, record or report;
(b) seize or examine any equipment, machine, device, article, thing, material or biological, chemical or physical agent;
(c) require a person to produce any item described in clause (a) or (b);
(d) conduct or take tests of any equipment, machine, device, article, thing, material or biological, chemical or physical agent, and take and carry away samples from the testing;
(e) take measurements of and record by any means the physical circumstances of the workplace; and
(f) make inquiries of any person either separate and apart from another person or in the presence of any other person.
Prosecutors intended to rely on section 56(1.2)(f) to compel the Applicants to meet with Ministry of Labour and Technical Safety and Standards Authority officials to answer questions about the incident in preparation for the trial; essentially, the prosecutors were using section 56 of the OHSA to compel persons to meet with them to help them prepare for the forthcoming trial of the matter.
The Applicants applied for stay of execution of the warrants pending a decision of the Court as to whether section 56 of the OHSA infringed certain Charter rights and whether the use of the search warrants constituted an abuse of process on the basis that section 56 did not authorize the issuance of search warrants for the purpose of detaining and interrogating a person. The stay was granted on December 5, 2005.
A hearing of the matter was held in May 2006 and the Court allowed the applications and directed that the search warrants be quashed. The Court found that the prosecution was attempting to distort the plain language and intent of section 56(1.2)(f) and to turn the statutory warrant into a pre-trial investigative summons, "a procedure that, if it succeeded, may violate s.7 and s.8 of the Charter and run roughshod over solicitor/client privilege."3 The Court stated that the plain wording and intent of section 56 of the OHSA did not allow a party to bring a person in for investigation and to require that person’s advice and assistance in the preparation of the case for the prosecution.
In his decision, Justice O’Driscoll referred to the factum of the Applicants, which argued that section 56(1.2)(f) is intended to allow discrete questions that arise during the course of the execution of a traditional search warrant only as required to render the execution of the search warrant effective—for example, questions such as "where is the power source for this machine? How do I operate this computer?" (citation) The Justice concluded that based on a plain and simple reading of section 56(1.2)(f), if warrants issued pursuant to this section adhere to the words and meaning of the section, there is no reason to find that the section violates any Charter rights. The problem is not with the section, but rather with the spin that the prosecution had put on it in trying to use it as a statutory summons rather than a statutory warrant.
The Crown appealed the Order of the Court quashing the warrants. On March 15, 2007, the Ontario Court of Appeal found that the appeal was moot, as the Crown had decided not to execute the impugned warrants but, instead, to keep the trial process moving ahead. As such, there was no reason to pursue the appeal. While the Court of Appeal did not decide the case on its merits, it did leave the decision of Justice O’Driscoll as the current final word on the issue of section 56(1.2)(f), a decision which significantly limits the power of an inspector to interrogate and question persons under a search warrant issued under the OHSA.