T-3369-75
In re Attorney General of Canada and in re
application for writ of assistance under the Cus
toms Act
Trial Division, Collier J.—Ottawa, October 6,
1975.
Customs and excise—Application for writ of assistance to
be used by customs officer—Court has no discretion and must
grant the writ—Customs Act, R.S.C. 1970, c. C-40, ss. 139,
145—Federal Court Rule 324.
When the Attorney General of Canada makes an application
under section 145 of the Customs Act for the issuance of a writ
of assistance, there is a duty upon the judge of this Court to
issue the writ in accordance with the application, conditional
only upon the judge satisfying himself that the person named in
the application is an "officer". The Court has no discretion in
the issuing of such writs in spite of the extraordinarily wide
powers given by them.
Re Writs of Assistance [1965] 2 Ex.C.R. 645, followed.
APPLICATION.
COUNSEL:
Application in writing under Federal Court
Rule 324.
SOLICITOR:
Deputy Attorney General of Canada for
applicant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The Attorney General of Canada,
ex parte, and pursuant. to section 145 of the Cus
toms Act', applies for the grant of a writ of
assistance to one Gloria Jane MacCabe "who is
employed in the Customs-Excise Investigations
Division as an investigator in the enforcement
of ..." the Customs Act. The application was
made in writing, and not orally, as permitted by
Federal Court Rule 324. The only material in
support of the request is the affidavit of George R.
Nicholson. I set out in full the contents of his
affidavit:
1. I am a Customs Officer and presently occupy the position of
_Director of the Customs-Excise Investigations Division which is
charged with the responsibility of investigating alleged viola
tions of the Customs Act and as such have knowledge of the
facts hereinafter deposed to.
R.S.C. 1970, c. C-40.
2. \ The person named in the foregoing application for the issue
of a Writ of Assistance is employed in the Customs-Excise
Investigations Division as an investigator in the enforcement of
the Customs Act.
The writ of assistance sought is as follows (I
have eliminated certain formal wording):
To Gloria Jane MacCabe, a Customs Officer;
You are hereby authorized, pursuant to section 145 of the
Customs Act to enter, at any time in the day or night, into any
building or other place within the jurisdiction of this Court, to
search for and seize and secure any goods which you have
reasonable grounds to believe are liable to forfeiture under the
Customs Act, and, in case of necessity, to break open any doors
and any chests or other packages for that purpose.
Witness a Judge of our Federal Court of Canada.
As can be seen, this writ can be in force for
many years to come. It is not directed to any
present particular suspected offence, nor related to
the investigation of the activities of any particular
person. The powers given are extremely wide and,
but for any legal sanctification in the statute,
would otherwise be an invasion of privacy and
property and civil rights. Section 145 of the statute
provides:
A judge of the Federal Court of Canada may grant a writ of
assistance to an officer upon the application of the Attorney
General of Canada, and such writ shall remain in force for as
long as the person named therein remains an officer, whether in
the same capacity or not.
Section 139 states:
Under the authority of a writ of assistance, any officer or any
person employed for that purpose with the concurrence of the
Governor in Council expressed either by special order or
appointment or by general regulation, may enter, at any time in
the day or night, into any building or other place within the
jurisdiction of the court from which such writ issues, and may
search for and seize and secure any goods that he has reason
able grounds to believe are liable to forfeiture under this Act,
and, in case of necessity, may break open any doors and any
chests or other packages for that purpose.
As a relative newcomer to this Court, I was
initially shocked and incredulous that the Court
should be asked or required, on such fragile and
unenlightening material, to lend its authority to
the clothing of an unknown government officer
with such extensive unlimited powers.
I am pleased to know that this reaction of shock
and incredulity to requests for grants of powers of
this kind is not, in this Court (or its predecessor),
new. Jackett P. (now Chief Justice) canvassed this
difficult problem in 1965 2 . He said at pages
647-648:
Having regard to the extraordinarily wide powers which are
conferred by statute upon the holder of a Writ of Assistance
and to the fact that, by statute, such a writ, once issued,
continues in effect during the whole of the career of the officer
to whom it is issued, it is of some importance to consider with
care the circumstances in which one of these writs should be
issued and the form which the writ should take.
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 invasionary powers given:
It is to be noted that, while the Customs Act provides that a
judge of the Exchequer Court "may grant" a Writ of Assist
ance upon the application of the Attorney General of Canada,
the other legislation summarized above provides that a judge of
the Exchequer Court of Canada "shall grant" a Writ of
Assistance upon the application either of the Attorney General
of Canada or the Minister of National Health and Welfare.
The first question that arises, therefore, is whether the use of
the word "shall" makes it mandatory, in the case of the three
statutes, that a judge of the Exchequer Court issue the Writ of
Assistance upon the receipt of the specified application without
any other material whatsoever except material to show that the
person to whom the writ is to be issued is an appropriate officer
if the statute limits the issuance of the writ to a specified type
of officer. If that be so, and I cannot escape the conclusion that
it is so, the further question arises as to whether the use of the
word "may" in the corresponding provision in the Customs Act
means that the statute has conferred a discretion on the Court
which must be exercised judicially and which contemplates,
therefore, that the application be made upon material which
will enable a court to decide, in the case of each application,
whether or not the facts are such as to warrant the issuance of
the Writ of Assistance. Having regard to the fact that the Writ
of Assistance confers authority upon the person named therein
to exercise the wide powers of search throughout the whole of
his career and without limit as to place, I find it very difficult,
if not impossible, to conceive of any basis upon which a judicial
discretion might be exercised. What advantage does it serve to
determine that, at the time of the issuance of the writ, the
officer is an appropriate person in whom to vest such extraordi
nary powers, when, by the terms of the statute, he is to continue
to have the powers for a period that may extend to twenty or
thirty years? Similarly, it is not possible for the Court to
exercise a discretion as to whether the particular circumstances
in which the powers of search are to be used are appropriate for
the exercise of such wide powers of search. Having regard to
the extraordinary difficulty, if not impossibility, of exercising
any judicial discretion as to whether or not a Writ of Assistance
should or should not be issued under the Customs Act upon any
particular application, and having regard to the fact that the
issuance of such writs under the other three statutes referred to
above is mandatory upon the specified application, and having
Re Writs of Assistance [1965] 2 Ex.C.R. 645.
regard to my inability to distinguish any difference between the
desirability of such writs being issued under the Customs Act
and the desirability of their issuance 'under the other Acts, I
have come to the conclusion that there is a duty upon a judge of
the Exchequer Court, upon receipt of an application from the
Attorney General of Canada under section 143 of the Customs
Act for the issuance of a Writ of Assistance, to issue the Writ
of Assistance in accordance with the application conditioned
only upon his satisfying himself that the person named in the
application is an "officer". (Pages 650-651.)
In the first instance, it is to be noted that, if I am right in my
construction of the legislation, when a person holding a Writ of
Assistance is exercising the powers conferred upon him thereby,
he is exercising powers conferred upon him by statute pursuant
to designation by the Attorney General of Canada or the
Minister of National Health and Welfare, as the case may be,
and is not executing an order or judgment of the Exchequer
Court of Canada, or a judge thereof. Parliament, in its wisdom,
has ordained that the authority conferred upon such officer
shall be evidenced in the form of a writ issuing out of the
Exchequer Court of Canada and the Court must bow to such
statutory direction. (Pages 651-652.)
I accept the conclusion of the Chief Justice. I
bow to the statutory direction, and therefore grant
this application of the Attorney General of
Canada.
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 qualifications 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.
3 I am not suggesting writs of this kind should never be asked
for or granted. There may be moral, political or social grounds.
The material in support of this application, for example, is
completely devoid of any facts which might indicate there is
some political, moral, social, economic, or administrative
ground for granting this particular individual the powers
sought.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.