MOE investigators have followed the practice of going before a Justice of the Peace to obtain an order under section 163.1(2) of the Environmental Protection Act to compel officials of companies being investigated to submit to an interview and produce documents.

Section 163.1(2) provides that a justice may issue an order “authorizing a provincial officer … to use any device, investigative technique or procedure…” if there are proper grounds presented in the application to show reasonable grounds of an offence.

As the result of an earlier comment in a case, the MOE took the position that this entitled their investigators to obtain an order requiring essential personnel of the company under investigation to appear to answer questions and to produce documents.

Criminal lawyers have taken the position that this interpretation and the orders which followed offended the fundamental right of an accused person to remain silent.

The Ontario Superior Court of Justice has recently agreed with those criminal lawyers in the case of Michael Branch v. the Queen.

The Court looked at the wording of section 163.1(2) and decided that it did not provide the power to compel persons to answer questions and quashed the Order to Obtain Information as a tool to compel witnesses to answer questions and provide documents.

Practical Suggestions:

• Remember that these orders have been obtained on an application without notice so you may still see attempts to use them;
• If you or anybody in your organization are presented with an Order to Obtain Information, you should politely decline to respond to it and demand the right to consult a lawyer;
• Make sure that the lawyer you consult knows something about criminal law and regulatory offences.  Many will not know what to do;
• Rely on your lawyer to deal with an improper order by applying to set it aside, if necessary, or to educate the investigator as to the limitations of his powers;
• Make no mistake. Environmental investigations can result in criminal charges with horrendous fines and penalties. Do not try to deal with the situation on your own.