Ungovernable News: Hunter v. Southam has withstood the test of time! Search and Seizure in the Regulatory Context! The problem with "reasonable belief"! All about "fishing expeditions"
What is the standard for a regulatory search and seizure? We all know what it is in the criminal context as a police officer has to swear an affidavit under oath and present it to the justice of the peace. The justice of the
Subsections 10(1) and 10(3) of the Combines Investigation Act provide:
10. (1) Subject to subsection (3), in any inquiry under this Act the Director [of Investigation and Research of the Combines Investigation Branch] or any representative authorized by him may enter any premises on which the Director believes there may be evidence relevant to the matters being inquired into and may examine any thing on the premises and may copy or take away for further examination or copying any book, paper, record of other document that in the opinion of the Director or his authorized representative, as the case may be, may afford such evidence.
(3) Before exercising the power conferred by subsection (1), the Director or his representative shall produce a certificate from a member of the [Restrictive Trade Practices] Commission, which may be granted on the ex parte application of the Director, authorizing the exercise of such power.
On April 13, 1982, in the course of an inquiry under the Act, the appellant Lawson A.W. Hunter, Director of Investigation and Research of the Combines Investigation Branch, authorized the
other appellants, Messrs. Milton, Murphy, McAlpine and Marroco, all Combines Investigation officers, to exercise his authority under s. 10 of the Act to enter and examine documents and other things at the business premises of the Edmonton Journal, a division of the respondent corporation, Southam Inc.
On April 16, 1982, in fulfilment of the requirement in s. 10(3) of the Act, Dr. Frank Roseman, a member of the Restrictive Trade Practices Commission, (the “R.T.P.C.”) certified his authorization of this exercise of the Director’s powers.
On April 19, 1982 the officers presented their certified authorization at the premises of the Edmonton Journal. The English version of this certificate reads as follows:
In the matter of the Combines Investigation Act and section 33 and section 34(1)(c) thereof
in the matter of an Inquiry relating to the Production, Distribution and Supply of Newspapers and Related Products in Edmonton
being my representatives under section 10 of the Combines Investigation Act
You are hereby authorized to enter upon the premises hereinafter mentioned, on which I believe there may be evidence relevant to this inquiry, and examine anything thereon and copy or take away for copying any book, paper, record or other document that in your opinion may afford such evidence.
The premises referred to herein are those occupied by or on behalf of
and elsewhere in Canada
This authorization is not valid after May 31, 1982.
Dated in Hull, in the Province of Quebec this 13th day of April 1982.
Lawson A.W. Hunter
Director of Investigation and Research
Combines Investigation Act
I hereby certify that the above exercise of powers is authorized pursuant to Section 10 of the Combines Investigation Act.
Dated in Ottawa, in the Province of Ontario, this 16th day of April, 1982.
Frank Roseman, Member,
Applying this approach, Prowse J.A. concluded—correctly in Southam Inc.’s submission—that, absent exceptional circumstances, the provisions of s. 443 of the Criminal Code, which extends to investigations of Criminal Code offences the procedural safeguards the common law required for entries and searches for stolen goods, constitute the minimal prerequisites for reasonable searches and seizures in connection with the investigation of any criminal offence, including possible violations of the Combines Investigation Act. Prowse J.A. summarized these procedural safeguards in the following propositions:
(a) the power to authorize a search and seizure is given to an impartial and independent person (at common law a justice) who is bound to act judicially in discharging that function,
(b) that evidence must satisfy the justice that the person seeking the authority has reasonable ground to suspect that an offence had been committed,
(c) that evidence must satisfy the justice that the person seeking the authority has reasonable grounds to believe, at common law, that stolen property may be on the premises or, under s. 443(1)(b), that something will afford evidence of an offence may be recovered, and
(d) there must be evidence on oath before him.
WHAT ABOUT SHE?
The problem is with the stipulation of a reasonable belief that evidence may be uncovered in the search. Here again it is useful, in my view, to adopt a purposive approach. The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure
READING IN V. READING DOWN
D) Reading In and Reading Down
The appellants submit that even if subss. 10(1) and 10(3) do not specify a standard consistent with s. 8 for authorizing entry, search and seizure, they should not be struck down as inconsistent with the Charter, but rather that the appropriate standard should be read into these provisions. An analogy is drawn to the case of McKay v. The Queen, 1965 CanLII 3 (SCC),  S.C.R. 798, in which this Court held that a local ordinance regulating the use of property by prohibiting the erection of unauthorized signs, though apparently without limits, could not have been intended unconstitutionally to encroach on federal competence over elections, and should therefore be “read down” so as not to apply to election signs. In the present case, the overt inconsistency with s. 8 manifested by the lack of a neutral and detached arbiter renders the appellants’ submissions on reading in appropriate standards for issuing a warrant purely academic. Even if this were not the case, however, I would be disin-
clined to give effect to these submissions. While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. Without appropriate safeguards legislation authorizing search and seizure is inconsistent with s. 8 of the Charter. As I have said, any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. I would hold subss. 10(1) and 10(3) of the Combines Investigation Act to be inconsistent with the Charter and of no force and effect, as much for their failure to specify an appropriate standard for the issuance of warrants as for their designation of an improper arbiter to issue them.
Here is the search warrant process:
Information for search warrant
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.
Here is the telewarrant process:
487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.
Marginal note:Information submitted by telephone
(2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.
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