T-514-84
Leslie Blake Danielson (Applicant)
v.
Ludvik Gordan Sterba, J. F. Denis Cousineau
(Respondents)
Trial Division, Rouleau J.—Vancouver, Septem-
ber 21; Ottawa, November 22, 1984.
Judges and courts — Federal Court Judge — Granting
Minister's application for writ of assistance under Narcotic
Control Act — Registry Officer signing face of writ — Wheth
er Judge delegating power to issue writs — Whether acting in
judicial capacity or in administrative capacity as persona
designata — Statute not requiring signature on face of writ —
Officer's signature verification — "Omnia praesumuntur"
doctrine invoked — Certiorari available against neither Offi
cer nor Judge Narcotic Control Act, R.S.C. 1970, c. N-1, s.
10(1)(a),(3) (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2))
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 2.
Constitutional law — Charter of Rights — Criminal process
— Search or seizure — Writ issued before promulgation of
Charter, activity complained of occurring after — Writs of
assistance issued under Narcotic Control Act desirable in free
and democratic society — Act s. 10(1)(a) not unconstitutional
but can be declared inoperative in certain circumstances: (R. v.
Rao and R. v. Hamill) — Reasonableness of search and
seizure to be determined in each case, irrespective of lawful
ness — To be justified, entry under Act s. 10(1)(a) requires
reasonable belief narcotics present, offence committed, and
search conducted in reasonable manner — Southam case
distinguished — Public interest in control of narcotics justify
ing restriction on individuals' rights — Judicial control possi
ble after event Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 8, 24(2) — Narcotic
Control Act, R.S.C. 1970, c. N-1, s. 10(1)(a),(3) (as am. by
R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2)).
Narcotics — Writ of assistance issued by judge under Act, s.
10(3) — Issued before Charter promulgated — Acts com
plained of occurring after — Writs desirable in free and
democratic society — Reasonableness of search and seizure to
be determined in each case — Certiorari application dismissed
— Narcotic Control Act, R.S.C. 1970, c. N-1, s. 10(1)(a),(3)
(as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2))
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 1, 8, 24(2).
Practice — Process — Writs of assistance — Registrar not
exceeding jurisdiction in signing writ and certiorari not appli
cable — Registrar's function authenticating writ issued pursu
ant to authorization of judge deriving authority from statute.
Judicial review — Prerogative writs — Narcotics — Certio-
rari — Issuing writ of assistance by Federal Court judge
judicial, not administrative function and judge not acting as
persona designata — Certiorari not applicable to Federal
Court judge — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 2.
A police officer entered and searched a dwelling-house under
the authority of a writ of assistance. The writ issued out of this
Court pursuant to an application by the Minister of National
Health and Welfare under subsection 10(3) of the Narcotic
Control Act. The Judge granted the application by writing on
it: "Let the Writs issue as applied for." and by signing it. The
writ used in this case was issued pursuant to that instruction
and signed by a Registry Officer.
This is an application for certiorari to quash that writ of
assistance.
The jurisdiction of this Court to deal with the application is
not in issue. The applicant argues, however, that the writ,
signed by the Registrar, is invalid because a judge cannot
delegate his power to issue writs unless there is enabling
legislation. Also in issue is whether certiorari is an appropriate
remedy in this case. This depends on whether the Judge was
acting in a judicial capacity or as persona designata, and
therefore in an administrative capacity.
The applicant also raises the question of whether, especially
in view of the Supreme Court's decision in Southam, the
issuance of writs of assistance and the warrantless searches
effected thereunder violate the right to be secure against unrea
sonable search or seizure, guaranteed by section 8 of the
Charter.
Held, the application should be dismissed.
The Registrar did not exceed his jurisdiction in subscribing
his signature to the formal document and certiorari would not
apply against him: his function is one of authentication; the
writ itself is issued pursuant to the authorization of a judge
empowered to do so by statute. Nowhere does the statute
require a signature to appear on the face of the writ.
When issuing such a writ, a Federal Court judge is perform
ing a judicial function and certiorari is not applicable. Even if
there is little discretion to exercise, it does not follow that the
judge is acting in an administrative capacity. Nor is he acting
as a persona designata since there is nothing in the statute to
that effect.
While conceding that the Southam decision has created a
problem in that it proclaimed the public's right to be secure
against unlawful search and seizure in accordance with section
8 of the Charter, counsel for the Crown argued that Southam
did not preclude the suspension of prior authorization when it
could not feasibly be obtained. In Southam, it had not been
necessary for the Supreme Court of Canada to weigh Charter
section 8 against the section I requirements of a free and
democratic society. It was open to the Courts to conclude that,
in certain circumstances, the rights of society take precedence
over individual rights. To do away with writs of assistance
would severely impair the work of law enforcement personnel in
combatting the illegal drug trade. R. v. Rao is not authority for
the proposition that writs of assistance contravene the Charter.
Martin J. would not have held that the admission of the
evidence would bring the administration of justice into disre
pute just because it had been obtained in a warrantless search.
Rather, it was excluded for a "gross abuse of power and a
flagrant denial" of constitutional rights.
Warrantless searches were unusual but had to be utilized in
narcotic drug cases in view of the following considerations: the
large amounts of money involved; the mobility of the offenders;
the social problems and the public concern.
In R. v. Hamill, Esson J. held that while entry under a writ
of assistance was lawful, it had to be reasonable to comply with
Charter section 8. But even if the search was unlawful or
unreasonable, that did not mean that the evidence must be
excluded. An appropriate remedy under Charter section 24(1)
would most often not be exclusion of the evidence. Exclusion
was appropriate only if admission would bring the administra
tion of justice into disrepute.
An entry under paragraph 10(1)(a) of the Narcotic Control
Act must be made with a reasonable belief that there is a
narcotic in the premises and that an offence against the Act has
been committed. Furthermore, the search must be conducted in
a reasonable manner.
Southam was to be distinguished for in that case the statu
tory authorization of searches involved a conflict of interest and
insufficient protection for the public. Under the Combines
Investigation Act, the person authorizing the warrant was
found, by Dickson C.J., not to be acting judicially. That Act
did not even embody a requirement for reasonableness.
In the case of writs of assistance in aid of narcotic drug
investigations, the courts afford the public adequate protection
after the event. The trial judge is an objective third party acting
judicially who will scrutinize what has taken place. The intru
sion on Charter section 8 rights is justified under section I.
As suggested by Justice La Forest in an article in the
Canadian Bar Review, American decisions and international
conventions ought not to be blindly followed. The Courts are
forced by the Charter to make value judgments with respect to
statutes even though their wording be clear but in doing so they
must be guided by the needs and traditions of our own society.
Canadian society is prepared to accept the limitations on
Charter rights which flow from this order.
CASES JUDICIALLY CONSIDERED
APPLIED:
Wilson v. The Queen, [1983] 2 S.C.R. 594; 37 C.R. (3d)
97; R. v. Rao (1984), 46 O.R. (2d) 80 (C.A.), confirmed
at [1984] 2 S.C.R. ix; Re Soenen and Thomas et al.
(1983), 3 D.L.R. (4th) 658 (Alta. Q.B.); Basile v. Attor-
ney-General of Nova Scotia (1983), 148 D.L.R. (3d) 382
(N.S.S.C.).
DISTINGUISHED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.
CONSIDERED:
United Assn. of Journeymen and Apprentices of Plumb
ing and Pipe Fitting Industry of U.S. and Can., Local
488 v. Bd. of Industrial Relations, [1975] 2 W.W.R. 470
(Alta. C.A.); Re Writs of Assistance (1975), 34 C.C.C.
(2d) 62 (F.C.T.D.); Herman et al. v. Deputy Attorney
General (Can.), [1979] I S.C.R. 729; 91 D.L.R. (3d) 3;
Minister of Indian Affairs and Northern Development v.
Ranville et al., [1982] 2 S.C.R. 518; 139 D.L.R. (3d) I;
R. v. Hamill, [1984] 6 W.W.R. 530; 41 C.R. (3d) 123
(B.C.C.A.).
REFERRED TO:
R. v. Carriere (1983), 32 C.R. (3d) 117 (Ont. Prov. Ct.);
R. v. Cuff (1983), 34 C.R. (3d) 344 (B.C. Co. Ct.).
COUNSEL:
M. L. Moore for applicant.
Ingrid C. Hutton, Q.C. for respondents.
SOLICITORS:
Woolliams, Korman, Moore & Wittman, Cal-
gary, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This is an application to quash a
writ of assistance issued out of this Court on May
22, 1975, pursuant to an application made by the
Minister of National Health and Welfare under
subsection 10(3) of the Narcotic Control Act,
R.S.C. 1970, c. N-1, as amended.
It is useful at this time to refer to paragraph
10(1)(a) and subsection 10(3) [as am. by R.S.C.
1970 (2nd Supp.), c. 10, s. 64(2)] of the Narcotic
Control Act:
10. (1) A peace officer may, at any time,
(a) without a warrant enter and search any place other than a
dwelling-house, and under the authority of a writ of assistance
or a warrant issued under this section, enter and search any
dwelling-house in which he reasonably believes there is a
narcotic by means of or in respect of which an offence under
this Act has been committed;
(3) A judge of the Federal Court of Canada shall, upon
application by the Minister, issue a writ of assistance authoriz
ing and empowering the person named therein, aided and
assisted by such person as the person named therein may
require, at any time, to enter any dwelling-house and search for
narcotics.
There is no doubt as to the propriety of the
application by the Minister dated May 13, 1975. A
judge of the Federal Court wrote on the applica
tion: "Let the Writs issue as applied for." and
signed it. Pursuant to this instruction, a writ of
assistance in proper form was issued to Ludvik
Gordan Sterba, a member of the R.C.M.P. drug
section. The seal of the Court appears on the
document and it is properly embossed. On the face
of it appears the signature of a J. F. Denis Cousi-
neau, Registry Officer. On June 15, 1983, while
engaged in the investigation of a suspected drug
offence, the police officer entered and searched a
dwelling-house under the authority of the writ of
assistance. Found in the dwelling-house was a
substance believed to be cocaine. This was seized
along with other paraphernalia usually associated
with drug users or traffickers.
After committal, and prior to trial, the solicitor
for the accused requested an adjournment in the
Provincial Court to permit him to bring an
application for certiorari before this Court seeking
to quash the writ of assistance. The adjournment
was granted, hence this application.
At the opening, the petitioner abandoned his
request for relief of quo warranto and also con
sented that Her Majesty the Queen be struck as a
party defendant.
There were two major submissions: one of pro
cess and the other of constitutionality. Counsel for
the applicant suggested that because all possible
evidence was before me, there was no need for a
full trial; that I should be capable of deciding the
constitutional issue.
Process
Applicant's Submission:
Counsel submits that this Court can and should
deal with the application to quash since the writ
was issued out of this Court; that the Court of
Queen's Bench in Alberta cannot question another
court's authority. This principle was canvassed in
the case of Wilson v. The Queen, [1983] 2 S.C.R.
594; 37 C.R. (3d) 97, and more particularly at
page 608 S.C.R.; 127 C.R. where the Supreme
Court of Canada states:
The exigencies of court administration, as well as death or
illness of the authorizing judge, do not always make it practical
or possible to apply for a review to the same judge who made
the order. There is support for the proposition that another
judge of the same court can review an ex parte order. See, for
example, Bidder v. Bridges (1884), 26 Ch.D. 1 (CA.), and
Boyle v. Sacker (1888), 39 Ch.D. 249 (C.A.) In the case of
Gulf Islands Navigation Ltd. v. Seafarers' International Union
(1959), 18 D.L.R. (2d) 625 (B.C.C.A.), Smith J.A. said, at pp.
626-27:
After considering the cases, which are neither as conclusive
nor as consistent as they might be, I am of opinion that the
weight of authority supports the following propositions as to
one Judge's dealings with another Judge's ex parte order: (I)
He has power to discharge the order or dissolve the injunc
tion; (2) he ought not to exercise this power, but ought to
refer the motion to the first Judge, except in special circum
stances, e.g., where he acts by consent or by leave of the first
Judge, or where the first Judge is not available to hear the
motion; (3) if the second Judge hears the motion, he should
hear it de novo as to both the law and facts involved.
I would accept these words in the case of review of a wiretap
authorization with one reservation. The reviewing judge must
not substitute his discretion for that of the authorizing judge.
Only if the facts upon which the authorization was granted are
found to be different from the facts proved on the ex parte
review should the authorization be disturbed. It is my opinion
that, in view of the silence on this subject in the Criminal Code
and the confusion thereby created, the practice above-described
should be adopted.
Neither counsel for the respondents nor I take
issue with this position.
II
The applicant argues that the writ, signed by the
Registrar, is invalid. The statute (Narcotic Con
trol Act) grants the Minister the authority to
make an application for a writ of assistance which
is then submitted to the Court. In this case it was
presented to a Federal Court judge who endorsed
on the application: "Let the Writs issue as applied
for." Although this procedure has been followed
by the Court for years, it is inappropriate. A judge
has been given the authority to issue the writs and
he cannot delegate this power unless there is en
abling legislation. To properly define "issuance",
he refers me to the case of United Assn. of Jour
neymen and Apprentices of Plumbing and Pipe
Fitting Industry of U.S. and Can., Local 488 v.
Bd. of Industrial Relations, [1975] 2 W.W.R. 470
(Alta. C.A.) and more particularly to page 473:
The words "issuance", "issuing" and "issue" have been the
subject of a number of decisions covering various shades of
meaning, and in the present context I would refer to the only
definition of "issue" set out in The Dictionary of English Law,
by Earl Jowitt:
"A writ, subpoena or similar document is said to be issued
when it is delivered by the proper officer of the court to the
party at whose instance it is sued out, after having been
sealed or otherwise marked to denote its official character."
[My underlining.]
He concludes that the signing of the writ by the
Registrar is not by the "proper officer" and is
therefore invalid.
III
The applicant is of the opinion that certiorari is
an appropriate remedy to set aside the functions
performed by both the Judge and the Registrar,
contending that the performance of their duties
was administrative.
He suggests to the Court that Collier J.'s view in
Re Writs of Assistance, reported in (1975), 34
C.C.C. (2d) 62 (F.C.T.D.), when referring to the
remarks of the Chief Justice in 1965 (Jackett
C.J.), was that a judge, when acting pursuant to
the dictates of a statute, is acting administratively
because there appears to be no discretion in the
exercise of the function. It is not judicial, not even
quasi-judicial. And counsel for the applicant
quotes Collier J. at page 64:
I think it desirable to repeat his conclusions because they
indicate this Court is reluctantly bowing to the dictates of the
statute and has no say or discretion in the matter of issuing
these writs which are then placed in the hands of persons who,
in individual cases, may seriously abuse the unrestrained inva-
sionary powers given.
At page 65 he wrote:
It may be commented by some that, in view of the carefully
reasoned decision of the Chief Justice in 1965, I, a novitiate in
1975, should merely have signed (on behalf of the Court) the
particular writ sought here. I infer from the reasons of the
Chief Justice he was, however, protesting the wide powers given
by these writs and the inability of the Court to exercise any
discretion in respect of the number of writs issued, the qualifi
cations of those to be clothed with the powers, and the duration
of the writs. Ten years after that protest these untrammelled
writs are still being sought. For that reason, and partly
influenced by the recent history of executive branch excesses in
the United States, I determined to reproduce once more, in
writing, the views expressed by Jackett, P. [My underlining.]
Counsel implies that these remarks by Collier J.
infer that these decisions are administrative, quali
fy for judicial review and are therefore subject to
certiorari, the appropriate remedy to quash deci
sions of other bodies or persons having legal au
thority to determine questions affecting the rights
of others.
Respondents' Submission:
Counsel for the respondents, as I have already
stated, did not take issue with the contention that
the application properly belonged in the Federal
Court.
II
The respondents submit that the issuance of the
writ of assistance was proper and that the signing
of the document by the Registrar did not vitiate
the process; that there was a proper application
submitted on behalf of the Minister; that the
person designated by the writ of assistance was a
proper person; that the execution by a judge of the
Federal Court of the application, "a proper offic
er" authorized its issuance; that the document
itself was in correct form and bore the seal of the
Court; that the signature of the Registrar appear
ing was for the purpose of verifying its authenticity
and did not in any way imply that the executing
official was the issuing officer.
III
The respondents admit that certiorari would
apply to acts performed by the Registrar were they
beyond his scope of authority; but, since he in fact
was not required to make a decision, there could
be no remedy.
Counsel submitted that certiorari cannot be
invoked against a judge of the Federal Court.
Once a judge, always a judge. Though Parliament
can, in certain circumstances, appoint a judge to
act in a special capacity of persona designata, it
may only do so by express and unqualified words.
One must look to the intent of Parliament and the
statute. I am referred to the case of Herman et al.
v. Deputy Attorney General (Can.), [ 1979] 1
S.C.R. 729; 91 D.L.R. (3d) 3, at page 749 S.C.R.;
18 D.L.R.:
Prima facie, Parliament should be taken to intend a judge to
act qua judge whenever by statute it grants powers to a judge.
He who alleges that a judge is acting in the special capacity of
persona designata must find in the specific legislation provi
sions which clearly evidence a contrary intention on the part of
Parliament. The test to be applied in considering whether such
a contrary intention appears in the relevant statute can be cast
in the form of a question: is the judge exercising a peculiar, and
distinct, and exceptional jurisdiction, separate from and
unrelated to the tasks which he performs from day-to-day as a
judge, and having nothing in common with the court of which
he is a member?
In discussing the interpretation of Collier J.'s
remarks in Re Writs of Assistance (supra), as
attributed to him by the applicant, the respondents
disagree that the judge was acting in an adminis
trative capacity; it cannot be inferred from his
remarks that he performed something other than a
judicial function. It is submitted that he initially
had to consider whether or not the application was
a proper one and submitted by the Minister;
secondly, that a proper person (i.e. an R.C.M.P.
officer) was the person designated in the writ of
assistance; and, thirdly that the scope of the au
thority granted by the writ did not exceed the
powers granted under the statute. Though there
was no discretion to be exercised, there was the
exercise of a judicial function.
A judge of the Federal Court has power to
invoke the remedy of prerogative writs with
respect to decisions made by inferior bodies or
tribunals as defined in section 2 of the Federal
Court Act; [R.S.C. 1970 (2nd Supp.), c. 10];
under the interpretation section, a "judge" means
a judge of the Court and one cannot infer that a
judge of the Federal Court can ever be performing
the functions of a commissioner, a federal board or
tribunal.
To attempt to vary or change the decision of a
Federal Court judge, the proper procedure is not
before the Trial Division but rather before the
Appeal Division of the Federal Court of Canada.
It is further submitted that a judge, when per
forming a function under a statute, can only be
acting as a judge and the authority for this can be
found in the case of Minister of Indian Affairs
and Northern Development v. Ranville et al.,
[1982] 2 S.C.R. 518; 139 D.L.R. (3d) 1, at page
528 S.C.R.; 9 D.L.R.:
In this instance adherence to the stare decisis principle would
generate more uncertainty than certainty. The Herman case
decided that persona designata status would be recognized only
in exceptional circumstances. This, however, leaves open to
debate just how exceptional the circumstances are in a particu
lar case. Thus, continued recognition of the distinction
approved by this court in Commonwealth of Puerto Rico v.
Hernandez, supra, can only have the effect of creating doubt as
to which review or appeal route a party should follow. The
judge-made concept of persona designata, so far as I can
determine, serves no useful purpose in the present context, and
can readily be jettisoned without prejudice to legal principle.
Having regard to the clear and unambiguous language of s.
2(g) of the Federal Court Act, "other than [...] any [...]
person [...] appointed [...] under section 96 of The British
North America Act, 1867",I am of the opinion that the proper
course is fidelity to the statutory language as evidence of
legislative intention.
As a final submission, counsel for the respon
dents argues that the doctrine of omnia
praesumuntur applies. That the writ of assistance
must be presumed legal until the contrary is
proved. In this instance we have an official act, it
is presumed that all necessary conditions and for
malities have been complied with, and though it is
a rebuttable presumption, this burden has not been
discharged by the applicant.
Conclusion of Process
There is no dispute that the remedy sought by
this application is in the proper forum. I am also
satisfied that the writ, on the face of it, was
properly issued. The Registrar in subscribing his
signature to the formal document did not exceed
his jurisdiction and certiorari would not apply
against him. His function is that of authenticating
the writ of assistance or any other document issued
pursuant to the authorization of a judge of the
Federal Court who derives his authority from the
statute. Nowhere in the enabling legislation do we
find any requirement of a judge's signature, or for
that matter any other official, to appear on the
face of the writ of assistance.
I further reject the suggestion that certiorari is
applicable to a judge in this Court or that he was
acting as a persona designata in these circum
stances. Though Collier J. may have found little
exercise of discretion in issuing writs of assistance,
it does not follow that he inferred that he was
acting administratively. When a judge of the Fed
eral Court authorizes the issuance of a writ of
assistance pursuant to the Narcotic Control Act,
he is performing a judicial function. He cannot be
acting in any other capacity unless the statute
indicated a contrary intention and directed that he
was acting in a manner "unrelated to the tasks
which he performs from day-to-day as a judge and
having nothing in common with the court of which
he is a member" (Herman, supra, at page-749
S.C.R.; 18 D.L.R.).
Constitutionality
Applicant's Submission:
Counsel for the applicant submits that the ratio
of Chief Justice Dickson in Hunter et al. v. South-
am Inc., [1984] 2 S.C.R. 145 is now the binding
authority in the case of statutory powers of search
and seizure; that any writ of assistance is an
instrument which challenges the constitutional
rights as enunciated and guaranteed by section 8
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)]. The almost limitless powers granted a
police officer, without interruption, are inconsist
ent and cannot be sustained.
I was urged to consider and follow the decisions
in R. v. Carriere (1983), 32 C.R. (3d) 117 (Ont.
Prov. Ct.), and R. v. Cuff (1983), 34 C.R. (3d)
344 (B.C. Co. Ct.). That I should adopt, without
question, counsel's interpretation of the conclusion
reached in the case of R. v. Rao (1984), 46 O.R.
(2d) 80 (confirmed by the Supreme Court of
Canada [ 1984] 2 S.C.R. ix), a decision of the
Ontario Court of Appeal, wherein Martin J. wrote
at page 109:
I have, for the reasons which I have set forth, concluded that
the search of an office without a warrant where the obtaining
of a warrant is not impracticable, is unreasonable and, to that
extent, s. 10(1 )(a) is of no force or effect.
Relying on Southam (supra), counsel argues
that search and seizure must conform to the mini
mum standards imposed under the Criminal Code
otherwise the legislation should be of no force and
effect. It is indispensable that an independant or
objective person assess the circumstances before a
warrant can issue. This now becomes an absolute
step in the procedure before searches and seizures
can be effectively carried out.
Dickson C.J. wrote (Southam, supra, at pages
161 and 162):
The purpose of a requirement of prior authorization is to
provide an opportunity, before the event, for the conflicting
interests of the state and the individual to be assessed, so that
the individual's right to privacy will be breached only where the
appropriate standard has been met, and the interests of the
state are thus demonstrably superior. For such an authorization
procedure to be meaningful it is necessary for the person
authorizing the search to be able to assess the evidence as to
whether that standard has been met, in an entirely neutral and
impartial manner. At common law the power to issue a search
warrant was reserved for a justice.
In this case, the writ of assistance was issued
before the Charter; the activity complained of
occurred after it came into effect. The Federal
Court granted the writ of assistance before the
promulgation of the Charter, at a time when re
strictions were non-existent and left the Court no
discretion but to issue. To support this position,
counsel refers me again to Southam, supra, (at
page 156):
The Canadian Charter of Rights and Freedoms is a purposive
document. Its purpose is to guarantee and to protect, within the
limits of reason, the enjoyment of the rights and freedoms it
enshrines. It is intended to constrain governmental action
inconsistent with those rights and freedoms; it is not in itself an
authorization for governmental action.
Respondents' Submission:
Paragraph 10(1)(a) and subsection 10(3) of the
Narcotic Control Act must be read and considered
together. They clearly imply preconditions before
the use of a writ of assistance can be relied upon
when entering a "dwelling house". They presume a
reasonable belief that there is a narcotic on the
premises and secondly that an offence has been
committed. There is a presumption under para
graph 10(1) (a) that the Court must first be satis
fied of the urgency of the situation before the
evidence which is the result of the search and
seizure can be introduced. In other words, it is
incumbent upon the trial judge to satisfy himself
as to the absolute necessity and urgency of the
circumstances before the evidence could be
adduced. A second step would then require the
Court to satisfy itself that the person exercising
the powers in the writ of assistance has reasonable
belief that narcotics are on the premises and that
an offence has been committed. This reasoning
was adopted by Martin J. in the case of R. v. Rao
(supra) and followed in the case of R. v. Hamill,
[1984] 6 W.W.R. 530; 41 C.R. (3d) 123 a decision
of the Court of Appeal of British Columbia dated
September 4, 1984.
I was urged to accept as a basic premise that it
is unreasonable, in all circumstances, to consider
prior authorization for the obtaining of a warrant.
To impose this condition would undoubtedly add
security to the rights of individuals as required
under section 8 of the Charter. In turn, it may
offset the greater right of society to be protected
against criminal activity in the narcotic field. That
the debate in Southam (supra) did not call upon
the Supreme Court of Canada to weigh section 8
of the Charter in light of section 1, the require
ments of a free and democratic society.
Counsel for the Crown admits that the decision
in Southam creates a problem because the public
has a right to be protected and secure against
unlawful search and seizure by section 8 of the
Charter; this action is to protect against the issu
ance and the use of these procedures before they
are required or prior to the occurrence of an event.
Southam, on the other hand, does not preclude the
argument that prior authorization may be sus
pended when it is not feasible to obtain it. It was
urged that Southam imposes an onus on the party
making the search but it remains rebuttable. There
can be circumstances when prior authorization
may and should be excepted. In a free and demo
cratic society we should be permitted warrantless
searches under certain restricted circumstances
but they must be confined and subjected to reason
able limits.
The courts have a duty to question that which is
to be remedied and they can then decide that
which is needed by way of effective laws to impose
narcotic control. It is open to them to conclude
that rights of society take precedence over the
rights of individuals in certain circumstances. To
remove writs of assistance would create a major
hardship on law enforcement primarily because of
urgency when dealing in the illegal drug trade. R.
v. Rao (supra) which has now been confirmed by
the Supreme Court of Canada, does not suggest
that writs of assistance contravene the Charter. It
supports the view that there must be some power
given to police officers when it is not practical to
obtain a warrant. This limitless exercise of search
and seizure may not be authorized even with a writ
of assistance when a warrant may be obtained in
non-urgent circumstances. In concluding, it was
suggested that when it is feasible to obtain a
proper warrant, a writ of assistance could not be
supported.
It is worth noting that, in R. v. Rao (supra), the
evidence was not excluded as a result of the con
clusion that paragraph 10(1)(a) was invalid.
Martin J. said that he would not have held that the
admission of the evidence would bring the
administration of justice into disrepute solely
because the evidence was seized during a warrant-
less search. A warrant was required to meet the
constitutional standard of reasonableness under
section 8 of the Charter. The evidence was exclud
ed because as he wrote at page 110:
... there was a gross abuse of power and a flagrant denial to
the respondent of his constitutional rights which cannot be
condoned in a free and democratic society.
Warrantless searches are unusual but they must
be maintained in narcotics cases if we are to
maintain any semblance of order in society. Spe
cial provisions are necessary in dealing with nar
cotics because of the large sums of money at stake,
the mobility of the perpetrators, the social prob
lems created and the general outcry from the
public.
Conclusion of the Constitutionality Issue:
I am satisfied that writs of assistance issued
under the Narcotic Control Act are desirable in a
free and democratic society and should prevail
subject to certain restrictions and confinements; I
disagree with the applicant's contention that
Martin J. concluded otherwise in R. v. Rao
(supra). He did not find that paragraph 10(1)(a)
of the Narcotic Control Act, R.S.C. 1970, c. N-1,
was unconstitutional. He decided it was inopera
tive in the case he had to decide because of its
particular facts bringing about an inconsistency
with the Charter and he wrote at pages 109-110:
In my view, the warrantless search powers conferred by s.
10(1)(a) of the Narcotic Control Act are not on their face
necessarily unreasonable and do not necessarily collide with the
Charter, although warrantless searches authorized by s.
10(1)(a) may in some circumstances, come into collision with
the Charter's protection against unreasonable searches and
seizures. It is not like the reverse onus contained in s. 8 of the
Narcotic Control Act, which on its face collided with the
presumption of innocence secured by s. 8 of the Charter ...
Accordingly, I do not consider that s. 10(1)(a) is unconstitu
tional, but hold that it is inoperative to the extent that it is
inconsistent with s. 8 of the Charter. In my opinion, s. 10(1)(a)
is inoperative to the extent that it authorizes the search of a
person's office without a warrant, in the absence of circum
stances which make the obtaining of a warrant impracticable;
beyond that it is unnecessary to go in the present case. In that
respect, my views differ somewhat from those of the trial judge.
He further concluded that a warrantless search
can be unreasonable in the case of a person's office
by extending to it the quality of a dwelling-house;
at page 106 he wrote:
The common law has always afforded special protection to
dwelling-houses which s. 10 recognizes by requiring a warrant
to search a dwelling-house. In my view, however, the individu
al's legitimate expectation of privacy in contemporary society
extends equally to his office. In Re Alder et al. and The Queen
(1977), 37 C.C.C. (2d) 234 at p. 251, [1977] 5 W.W.R. 132, 5
A.R. 473 sub nom. Alder v. A.-G. Alta. et al. (Alta. S.C.T.D.)
Moshansky J. stated, "The authority to search a citizen's home,
or his private office involves an extraordinary infringement of
his liberty and his privacy." (Emphasis added.) The Law
Reform Commission of Canada has suggested that the exist
ence of separate rules for the search of dwellings and other
private premises carrying a high expectation of privacy, such as
offices, should be reconsidered: at pp. 24-5.
There is a seeming inconsistency, and perhaps even incon
gruity, between s. 10(1 )(a) of the Narcotic Control Act confer
ring power on a police constable to ransack a person's office
without a warrant because he has reasonable grounds for
believing that there are a few ounces of marijuana on the
premises, even when it would not be impracticable to obtain a
warrant, and s. 11 of the Official Secrets Act which requires a
search warrant to search private premises save in the exception
al circumstance when there is an emergency situation in which
the interest of the State requires immediate action. Even in the
latter situation the R.C.M.P. constable is required to obtain
written authorization from a senior officer, not below the rank
of superintendent, before undertaking a search, unlike under
the Narcotic Control Act where the police officer acting in his
discretion may search private premises without a warrant or
written authority even though there is no emergency making it
impracticable to obtain a warrant.
In my view, the warrantless search of a person's office
requires justification in order to meet the constitutional stand
ard of reasonableness secured by s. 8 of the Charter, and
statutory provisions authorizing such warrantless searches are
subject to challenge under the Charter. The justification for a
warrantless search may be found in the existence of circum
stances which make it impracticable to obtain a warrant: see,
for example, s. 101(2) of the Code; s. 11(2) of the Official
Secrets Act. The individual's reasonable expectation of privacy
must, of course, be balanced against the public interest in
effective law enforcement. However, where no circumstances
exist which make the obtaining of a warrant impracticable and
when the obtaining of a warrant would not impede effective law
enforcement, a warrantless search of an office of fixed location
(except as an incident of a lawful arrest) cannot be justified
and does not meet the constitutional standard of reasonableness
prescribed by s. 8 of the Charter. [Emphasis added.]
According to Martin J. in R. v. Rao (supra) the
reasonableness of a search in light of section 8 of
the Charter should be examined; at page 90 he
wrote:
A challenge to the reasonableness of a particular search may
be made under the Charter on two bases. Firstly, the reason
ableness of the legislation authorizing the search is subject to
challenge; secondly, a search under a constitutionally valid
statutory authority may be carried out in an unreasonable
manner, for example, by the use of excessive force.
Therefore, the test of reasonableness of section 8
of the Charter goes beyond the lawful entry of an
officer. It may be lawful but unreasonable. Martin
J. wrote in R. v. Rao (supra) at page 105:
Mr. Dambrot, in support of his able submission that the
warrantless powers conferred by s. 10(1)(a) of the Narcotic
Control Act were reasonable, stressed the fact that s. 10(1)(a)
authorizes a warrantless search only where a peace officer has
reasonable grounds to believe that there is in the place to be
searched a narcotic drug possessed in contravention of the Act,
and it does not authorize a warrantless entry into premises to
search for evidence. Mr. Dambrot is, of course, correct in
stating that entry under s. 10(1)(a) is justified only where the
officer has reasonable grounds to believe that there is in the
place to be searched a narcotic by means of or in respect of
which an offence under the Act has been committed. However,
upon a lawful entry very wide powers are conferred. The peace
officer may search any person found on the premises, break
open doors and containers and seize and take away not only
narcotics, but anything which he reasonably believes may be
evidence of the commission of an offence under the Act.
The legitimate expectation of privacy in one's home or office
is one of the most valued rights of the individual afforded
protection by a democratic society.
According to Martin J. in R. v. Rao (supra), it
is a question of circumstances. Warrantless
searches may be reasonably justified. And he
wrote at page 109:
Section 10(1)(a) does not, on its face, necessarily clash with
s. 8 of the Charter although in some circumstances a warrant-
less search authorized by that subsection may, in fact, infringe
the constitutional requirement of reasonableness secured by s. 8
of the Charter, depending upon the circumstances surrounding
the particular search. The statute is inoperative to the extent
that it authorizes an unreasonable search. Section 52(l) of the
Constitution Act, 1982 reads:
52 (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the inconsistency, of
no force or effect. (Emphasis added.)
Esson J. in R. v. Hamill (supra) agreed that
paragraph 10(1) (a) of the Narcotic Control Act is
not, per se, unconstitutional and he said at pages
534, 535 W.W.R.; 129 C.R.:
The question is whether s. 10(1)(a), in empowering a search
of the dwelling under the authority of a writ of assistance, is
inconsistent with s. 8 of the Charter, and thus of no force and
effect. That section authorizes a peace officer, under the au
thority of a writ of assistance or a warrant, to enter and search
any dwelling-house in which he reasonably believes there is a
narcotic by means of or in respect of which an offence against
the Act has been committed.
In my view, the section validly confers the power to enter and
search under the authority of a writ of assistance. If it required
only possession of a writ of assistance, it would be inconsistent
with s. 8. There would then be no requirement of reasonable
grounds. But the section authorizes only an entry and search
based on a reasonable belief in the presence of a narcotic by
means of or in respect of which an offence has been committed.
A search based upon a reasonable belief in the presence of a
narcotic involved in an offence is a reasonable search, so there
is no inconsistency with s. 8.
The powers given under paragraph 10(1)(a) are
very wide but then the subject is very specific and
the legislature believed in its necessity in consider
ing the particular circumstances encountered in
drug investigations.
According to Esson J., entry under authority of
a writ of assistance is lawful. But to be in accord
ance with section 8 of the Charter, the search
should be reasonable. When is it?
Here is what he says at page 547 W.W.R.; 141
C.R.:
The conclusion that the writ of assistance is constitutionally
valid does not end the inquiry whether the search carried out
under its authority was reasonable. Entry under authority of a
writ of assistance is lawful, and not in breach of s. 8 of the
Charter, only if the officer had a reasonable belief in the
presence of a narcotic. Even if the initial entry is reasonable,
the search may become unreasonable if carried out in an
unreasonable manner. On the other hand, even if a search was
carried out without lawful authority, or was otherwise unrea
sonable, that is not in itself a ground for excluding the evidence.
If it amounts to a breach of the Charter, it will provide grounds
for granting under s. 24(1) a just and appropriate remedy. The
remedy of exclusion of evidence will not, in most cases, be
either just or appropriate. It can be so only if the admission of
the evidence would, in the words of s. 24(2), bring the adminis
tration of justice into disrepute.
Over the years, many commissions were
appointed to analyse writs of assistance together
with their use and value. In the 1972 report of the
Commission of Inquiry into the non-medical use of
Drugs (Le Dain Commission), Professor Le Dain
(as he then was) wrote on behalf of the Commis
sion [at page 240]:
A writ of assistance is a general warrant that is not limited as
to time or place and remains valid during the entire career of
the law enforcement officer to whom it is issued. It is obtained
upon application by the Minister of National Health and
Welfare to a judge of the Federal Court. The judge has no
discretion in the matter. It is mandatory that he issue the writ
upon such an application. The writ empowers the officer named
in it, with the assistance of such other persons as he may
require, to enter any dwelling-house at any time and search for
prohibited drugs. In practice writs of assistance are issued
under the drug laws only to officers of the R.C.M. Police.
At page 297, the Commission stated as part of
its conclusions and recommendations:
The use of extraordinary methods of enforcement. Refer
ence has been made in Chapter 5 to the extraordinary methods
of law enforcement which must be resorted to because of the
difficulty in detecting offences by reason of the fact that there
is seldom, if ever, a complainant. The use of special methods of
search, undercover agents and informers, and police encourage
ment of offences makes the impact of the criminal law process
in this field particularly unpleasant and generates considerable
resentment. It also tends to bring the law and police into some
disrepute. Commission researchers who engaged in participant
observation of law enforcement in the drug field have conclud
ed that such enforcement would be seriously handicapped if the
police were deprived of these special powers and methods. It
would appear, therefore, that they must be regarded as special
costs inherent in the criminal law prohibition of the distribution
and use of drugs. [My underlining.]
I have come to the conclusion that a search can
be lawful but unreasonable; it may also be without
lawful authority but reasonable and pass the test
of section 8 of the Charter.
To be operative, an entry made under paragraph
10(1)(a) of the Narcotic Control Act must be
made at all times with reasonable belief that there
is a narcotic in the premises to be searched; that
an offence under the Act has been committed and
that the manner in which the search is conducted
be reasonable.
The wording of paragraph 10(1)(a), when deal
ing with entry into a dwelling-house, is therefore,
not per se, unconstitutional but can become of no
force and effect depending on the particular cir
cumstances of the case. It could be considered
inoperative in its application in light of section 8 of
the Charter.
In Southam (supra), the statute in question was
the Combines Investigation Act [R.S.C. 1970, c.
C-23]. Subsection 10(3) provides for prior authori
zation of searches by a member of the Restricted
Trade Practices Commission. No doubt there is a
conflict of interest and as it was stated, a commis
sioner cannot be said to be acting judicially.
The Combines Investigation Act does not pro
vide sufficient protection to the public. The courts
concluded that the Act brings about unreasonable
search and seizure and was found not to measure
up to the standards imposed by the Charter.
The issue in Southam (supra) was more
restricted and the parameter of the debate is found
at page 154:
At the outset it is important to note that the issue in this
appeal concerns the constitutional validity of a statute authoriz
ing a search and seizure. It does not concern the reasonableness
or otherwise of the manner in which the appellants carried out
their statutory authority. It is not the conduct of the appellants,
but rather the legislation under which they acted, to which
attention must be directed.
Dickson C.J. concluded that the person author
izing the warrant was not a person acting judicial-
ly nor could the person overcome the objectivity
test. At page 162 he wrote:
The person performing this function need not be a judge, but he
must at a minimum be capable of acting judicially.
This function and its required impartiality is
defined at page 164 when he wrote:
In my view, investing the Commission or its members with
significant investigatory functions has the result of vitiating the
ability of a member of the Commission to act in a judicial
capacity when authorizing a search or seizure under s. 10(3).
This is not, of course, a matter of impugning the honesty or
good faith of the Commission or its members. It is rather a
conclusion that the administrative nature of the Commission's
investigatory duties (with its quite proper reference points in
considerations of public policy and effective enforcement of the
Act) ill-accords with the neutrality and detachment necessary
to assess whether the evidence reveals that the point has been
reached where the interests of the individual must constitution
ally give way to those of the state. A member of the R.T.P.C.
passing on the appropriateness of a proposed search under the
Combines Investigation Act is caught by the maxim nemo
judex in sua causa. He simply cannot be the impartial arbiter
necessary to grant an effective authorization.
Dickson C.J. further concluded at page 168 that
there was no requirement of reasonableness in the
legislation itself:
In cases like the present, 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, constitutes the minimum standard, consistent with
s. 8 of the Charter, for authorizing search and seizure. In so far
as subss. 10(1) and 10(3) of the Combines Investigation Act do
not embody such a requirement, I would hold them to be
further inconsistent with s. 8.
However, he is of the opinion that there might
be some exceptions (pages 160 and 161):
As such it accords with the apparent intention of the Charter to
prefer, where feasible, the right of the individual to be free
from state interference to the interests of the state in advancing
its purposes through such interference.
I recognize that it may not be reasonable in every instance to
insist on prior authorization in order to validate governmental
intrusions upon individuals' expectations of privacy. Neverthe
less, where it is feasible to obtain prior authorization, I would
hold that such authorization is a precondition for a valid search
and seizure.
The Narcotic Control Act is a very special
statute and to sustain writs of assistance in the
case of entering a "dwelling-house" one has a duty
to find the balance between individuals' rights and
the public interest. Because of the nature of drugs
and their far-reaching social consequences, I am
persuaded to accept certain limited restrictions to
individuals' rights which should be considered
reasonable and in the public interest, in a free and
democratic society.
When there is a challenge to the constitutional
validity of a statute and the Canadian Charter of
Righs and Freedoms has been invoked, I must
determine if the infringement is within reasonable
limits. In Re Soenen and Thomas et al. (1983), 3
D.L.R. (4th) 658 (Alta. Q.B.), it was found that if
the limiting section of the Charter is applied, we
must then balance the individual's rights against
those of the collectivity. The Court must determine
that which can be a reasonable limit demonstrably
justified in a free and democratic society. In Basile
v. Attorney-General of Nova Scotia (1983), 148
D.L.R. (3d) 382, the Supreme Court of Nova
Scotia reasoned that if it becomes necessary to
protect the general public, certain constraints and
limitations may be imposed on our freedoms.
In this case, the Crown has demonstrated that,
within reasonable limits, we should impose certain
restrictions to section 8 of the Charter, which are
justifiable in a free and democratic society when
considering the social, economic and political wel
fare of Canadians. Section 1 of the Charter was
drafted in such a manner as to anticipate the
imposition of certain restrictions on our rights and
freedoms. The language itself imposes no limita
tion on the latitude of the censorship by which the
courts may justifiably restrict our freedoms.
Searches and seizures are intrusions into the
private domain of the individual. They cannot be
tolerated unless circumstances justify them in
exceptional cases.
Though there may be no immediate prior
authorization, the courts afford the public ade
quate protection after the event. Tests are adminis
tered by an objective third person acting judicially,
the trial judge. Writs of assistance under the Nar
cotic Control Act are always subject to scrutiny
under section 8 of the Charter but they can be
reasonable and operative provided they adhere to
certain rigorous tests. They must demonstrate
urgency and the impracticability of obtaining a
search warrant in the particular circumstances;
reasonableness, as to the manner in which the
search was conducted; that the person availing
himself of the writ of assistance reasonably
believes that there is a narcotic on the premises in
respect of which an offence under the Act has been
committed; that the reasonable belief be thorough
ly canvassed as to the investigating officer's knowl
edge prior to conducting the search; that the evi
dence sought and obtained during the search be
confined to the offence he reasonably believed was
committed.
These criteria, though not restrictive, nor all
inclusive, do not leave the individual without pro
tection against warrantless searches and seizures.
Though individuals' rights under section 8 of the
Charter would be subject to these intrusions, I am
convinced that they are required under section 1 of
the same Charter; they are not inconsistent with
the requirements of law enforcement in the narcot
ic field in a free and democratic society. There is
also the additional protection of subsection 24(2)
of the Charter.
One must be apprehensive of undermining
police powers by interpreting legal rights in such a
manner as to protect the criminal element and at
the same time diminish the security of the citizen.
Justice Gérard V. La Forest of the Court of
Appeal of New Brunswick (as he then was), writ
ing in the Canadian Bar Review on the Canadian
Charter of Rights and Freedoms in an article
entitled "The Canadian Charter of Rights and
Freedoms: An overview", published at (1983), 61
Can. Bar Rev. 19, at page 20:
The courts through a series of presumptions designed "as
protection against interference by the state with the liberty or
property of the subject" interpret statutes so as to ensure that
individual freedom or private rights of property are not arbi
trarily restricted or abridged. In doing this the courts exercise
what is in essence a constitutional function. They are working
along with the legislative branch to ensure the preservation of
our fundamental political values. The legislature can, of course,
by clear language overturn the court's ruling, but by insisting
on such clarity the courts help to promote second thought and
public debate, a debate that all recognize as an essential
safeguard in a parliamentary democracy.
And at page 25, dealing with section 1 of the
Charter, he continued:
In any society, rights have to be balanced against one
another. Absolute rights are virtually non-existent. The courts
would in any event have to engage in balancing the rights set
forth in the Charter against other rights, and in doing so they
would naturally have recourse to what is reasonably justified in
a democratic society. For that is the kind of society we live in
and judges like other citizens feel the pulse of their own society.
At page 24 he wrote:
I might add, interstitially, that the Charter forces us to look
at questions differently than before. However clear a statute or
its purposes may be, courts will be asked to make a value
judgment about it, a duty that is very different from the
traditional role of the court. This should profoundly affect the
sources on which courts must rely for guidance. In particular,
reference to judicial decisions in other jurisdictions, notably the
United States, and under the United Nations Covenant on Civil
and Political Rights and the European Convention for the
Protection of Human Rights and Fundamental Freedoms. Not
that I think we should blindly follow these. Our courts must be
guided by the felt needs and traditions of our own society. But
they will be invaluable in raising the issues that must be
considered. So often we fail to see that a course of action may
unnecessarily infringe on the rights of the individual because
we have simply become accustomed to that way of doing things.
As Justice La Forest distinguished, there is no
need for us to blindly follow other jurisdictions but
we should be guided by the needs and traditions of
our own society. This judgment may generate
second thoughts. As I see the pulse of our society,
1 have concluded that it is prepared to accept the
limitations that I would impose on its rights and
freedoms.
I cannot comment on the particular facts of this
case. The Trial Judge shall determine whether or
not the evidence obtained in the search and seizure
is admissible.
Application dismissed with costs.
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