September 17, 2018
Doyon, Savard, Rancourt
Appeal from a judgment of the Superior Court granting in part an application based on ss. 227 and 231 of the Act respecting land use planning and development (CQLR, c. A-19.1). Dismissed.
In 1997, the appellants became the owners of a group of 11 buildings located within the territory of the respondent city. On August 31, 2012, the respondent sought a court order for the demolition of 7 of these buildings. On March 21, 2016, the Superior Court ordered the appellants to carry out various work on the buildings they owned because of their poor state. The appellants submit that s. 411 of the Cities and Towns Act (CQLR, c. C-19) and s. 3.1.3(3) of the respondent’s by-law 2009-U51 concerning the application and administration of urban planning by-laws does not authorize a municipal inspector to enter a building in the absence of its owner or occupant without prior authorization (from the owner, occupant or the Court), much less so by forcing his or her way in. They therefore claim that the judge erred in dismissing their objection to the filing of reports prepared further to the inspection conducted on November 2, 2015, inside their buildings after they had refused to grant the inspector access.
An administrative inspection such as the one impugned by the appellants constitutes a search. The respondent could not rely on s. 3.1.3(3) of by-law 2009-U51 to gain access to the inside of the appellant’s buildings, which it should have considered to be private dwellings, at least with respect to certain units, by picking the locks or entering through the window, without prior authorization. This provision does not expressly authorize the respondent to forcefully enter a dwelling house on its own initiative when there is no issue of urgency or serious danger. In view of the significance of the violation of privacy it entails, such power requires clear wording, which is not the case here. Moreover, in the event of an owner’s refusal to grant access to his or her dwelling house, this regulatory provision does not authorize the inspector to force entry. The respondent cannot rely on legislative silence to expand the scope of its powers of inspection. The inspection in dispute, as it was carried out, therefore infringes s. 24.1 of the Charter of human rights and freedoms (CQLR, c. C-12) and s. 8 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, app. II, No. 44, Schedule B, Part I).
However, the judge did not err in refusing to dismiss the evidence resulting from the inspection on the ground that the trial’s truth-seeking function was better served by using rather than excluding the evidence. Indeed, a fair weighing of the relevant factors – the seriousness of the infringement and the stakes of the trial – authorized the use of evidence that was not likely to bring the administration of justice into disrepute.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca.
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