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Get a Warrant: Even Health Inspectors

June 14, 2018

Get a Warrant: Even Health Inspectors 1

Our firm is in the process of handling a case which has public interest and concerns your civil rights. This case concerns the right of Alberta Health Services (“AHS”) health inspectors to enter and inspect residential rental properties for potential health code violations (such as mold, or unsafe construction). Our clients are landlords who objected to AHS entering its properties without either permission or a warrant.  The health inspector takes the position that it is entitled to enter any rental property without the permission of either the tenant or the landlord, without notice to the tenant, without prior judicial authorization, and even without any reasonable and probable grounds for believing that there is a violation, on the basis that occupied residential dwellings, if rented, are considered “public places” within the meaning of the Public Health Act.

Our clients have taken the position that occupied rented residential properties are private dwellings within the meaning of the statute, and therefore the health inspector can only search them upon reasonable and probable grounds, and with the consent of either the tenant or the landlord, or pursuant to a court order granted on the basis of those reasonable and probable grounds.

If the health inspector’s interpretation of the statute is correct, then health inspectors have greater powers of entry and search into private dwellings (so long as they are rented) than the police do.  This cannot be correct.

It has been a principle of our judicial system that “a man’s home is his castle” since the times when the phrase was literally true.[1]  That right was enshrined in our common law, and given even greater force by the enactment of s. 8 of the Charter.[2] The right to privacy in one’s home is of especially high importance and should only give way to public interest when certain requirements have been met.[3]  In striking the balance between public interest and an individual’s right to privacy, our justice system has favored privacy rights even over the public interest in catching criminals, requiring prior judicial authorization and reasonable and probable grounds for a search.[4]  It cannot be that there is a greater interest in stopping mold than there is in stopping murderers.

This case is of public importance because the state is trampling the privacy rights not just of the appellant landlords, but of their tenants as well.  Such tenants were given no notice of the hearing, no notice of the search, and gave no consent.  To give an example that puts the actions of the state in context, in one instance of these searches, the tenant came out of the shower to find government employees searching her home.  This is an unacceptable violation of civil rights.

The right to be free from unreasonable search and seizure is one of the cornerstones of our modern judicial system.  It applies to all exercise of government powers, regulatory, criminal or otherwise.[5]  Minimum requirements for a search to be constitutional include:

  1. Prior authorization, usually in the form of a warrant[6]
  2. Originating from a neutral and impartial party capable of acting judicially[7] rather than administratively or investigatory[8]
  3. Issued on the basis of “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”[9]

In this case, a number of the searches complained of were undertaken without any judicial authorization, and without grounds, solely on the basis that AHS felt a need to determine the presence of a nuisance or whether the Act or its regulations were being complied with.[10] For the other searches, while judicial authorization was obtained, the application was heard without notice to the tenants, and granted on the basis that the statute entitles AHS to such an order as a matter of course, given the Act, and without consideration of reasonable or probable grounds. To drive home the point of how groundless the searches were, two of the properties against which the order was granted are not even owned by our clients. The only connection those properties have to any allegation of health code violation is that the name on title is similar to the name of one of our clients.

Simply put, the health inspector wishes to be able to conduct searches of tenanted property with impunity, without – specifically – any requirement to get authorization from the tenants or articulate reasonable and probable grounds.  In fact, the health inspector admits, in its factum, that this is exactly what it is seeking.  They say, at para 48:

If rental units were private places where tenants could object to AHS inspections, this would shield these units from any routine monitoring inspections because, if there was an objection from the tenants, AHS would not be allowed to inspect or to seek a court order, unless AHS first had, before the inspection, reasonable and probable grounds that contraventions of the Act already existed.[11]

That is precisely the point.  The individual should be able to say that they do not want to be searched, unless there is a reason, and that protection should not depend on whether one owns his or her property, or rents it.  The right to privacy and freedom from unreasonable search and seizure (especially of one’s home) is a right that everyone shares.  It is not tied to property rights.

Absent of any demonstrated need to impinge upon that right, the state is not entitled to conduct such searches without the resident’s consent. To the extent that searches are exercised pursuant to legislation with protections that fall below the minimum standards, such searches are unconstitutional.  Accordingly, in order to properly consider the application of these sections to the facts at bar, it is submitted that the constitutionality of these provisions must be a factor that is considered.  At least, that is what we will be arguing before the Court of Appeal. We will let you know how it goes, wish us luck!

[1] R. v. Feeney 1997 CanLII342(SCC) at p. 43. [tab1]

[2] Hunter et al. v. Southam Inc., [1984] 2 SCR 145 at p. 158 [tab2]

[3] Hunter supra at pp. 160, 167-168

[4] Ibid.

[5] Hunter supra at p. 156

[6] Ibid. at 160.

[7] Ibid. at 161

[8] Ibid. at 162-163

[9] Ibid at 167-168

[10] Respondent’s Factum at para 36.

[11] Respondent’s Factum, at para 48.