Getting a Charter Challenge Heard in a Bylaw Prosecution

The Dispute

A homeowner was charged with nine bylaw offences over a kitchen, a sundeck, a pool and outbuildings built without permits, and over letting other people occupy the property. Bylaw officers had come to the house with police and searched it under a warrant a justice had granted them. The owner pleaded not guilty to every charge and said the search should never have happened.

The Parties’ Positions

The municipality applied for summary dismissal of the owner’s Charter challenge, contending that a voir dire, the separate hearing at which such a challenge is tried, was unnecessary. It submitted first that section 16 of the Community Charter authorized entry onto the property without a warrant, which made the validity of the warrant moot in its view. It submitted further that even if the impugned passages were excised, ample evidence remained to support the warrant. On the disclosure objection it maintained that the law requires no complainant’s name, and that other material in the Information corroborated the account, including images officers had viewed of new buildings, extensions and a pool.

The owner objected that the Information to Obtain failed to disclose what the municipality knew about the complainant, including that the two were known to one another and that the complainant bore animus toward the owner. That omission, the owner submitted, left the issuing justice unable to assess the complainant’s reliability. The owner objected further that the Information contained an unwarned and arguably involuntary admission against interest, and that the warrant was defective on its face as to breadth, location, description and time for execution. Answering the reliance on section 16, the owner contended that the provision is itself unconstitutional as authorizing a warrantless search. That argument rested on Arkinstall v. City of Surrey, in which the Court of Appeal held that a warrantless entry of residential premises under the Safety Standards Act violated section 8 of the Charter.

The Court’s Decision

The court applied R. v. Haevischer, which places the onus on the party seeking summary dismissal and sets the threshold at whether the challenge is manifestly frivolous. It held that the municipality had not shown the disclosure objection to be manifestly frivolous, since its submissions went directly to the merits, and reached the same conclusion on the objections to the breadth of the warrant, the location, the description and the time for execution.

On the admission against interest, the court observed that voluntariness is a question of fact for a voir dire, and added that it would have allowed the manner-of-search objection to proceed irrespective of Haevischer. The court dismissed the application, so the challenge to the warrant and the Information will be heard in a voir dire when the trial recommences, and the owner may also pursue the constitutional challenge to section 16 once notice is given.

Key Lessons for Property Owners and Bylaw Prosecutors

• Record what is known about a complainant before swearing an Information to Obtain. The owner’s principal objection was that the municipality knew the complainant and the owner were acquainted and that the complainant bore animus, and that none of it reached the issuing justice.
• Do not argue the merits on an application to dismiss a challenge summarily. The court held that the municipality’s submissions went directly to the merits of the objections, and under Haevischer a judge cannot weigh the evidence or choose between competing inferences at that stage.
• Raise a constitutional challenge to the enabling legislation with proper notice. The owner’s argument that the warrantless entry provision is invalid was deferred until notice is given under the Constitutional Question Act, and only then can it be heard.
• Separate the objections to the document from the objections to the conduct of the search. The court would have allowed the manner-of-search objection to proceed irrespective of the threshold, because it raises questions of evidence that cannot be assessed on a summary basis.

This ruling decided only whether the challenge would be heard, not whether the search was lawful. The charges remain before the court, and a similar application may resolve differently.

ATAC LAW acts for property owners and for municipalities in bylaw enforcement and construction permitting disputes.