T-1874-76
In re Writ of Assistance and in re Narcotic Con
trol Act
Trial Division, Mahoney J.—Ottawa, June 8,
1976.
Crown—Practice—Motion under Rule 324 for issue of writ
of assistance to "W", a member of the RCMP—Supporting
affidavit required—Application adjourned pending filing of
material—Narcotic Control Act, R.S.C. 1970, c. N-1, s.
10(3)—Federal Court Act, s. 64(2) and Rules 319, 324—
Criminal Code, R.S.C. 1970, c. C-34, s. 2—Royal Canadian
Mounted Police Act, R.S.C. 1970, c. R-9, s. 17(3).
The Minister of National Health and Welfare applied ex
parte under section 10(3) of the Narcotic Control Act for the
issue of a writ of assistance to one W, a member of the RCMP.
The motion, presented pursuant to Rule 324, was in writing,
without appearance, and without supporting affidavit.
Held, the application is adjourned sine die with leave to
applicant to file additional supporting material and to present
oral argument. The Court refused to deal with the matter
pending the filing of a supporting affidavit. The application
which section 10(3) of the Narcotic Control Act authorizes
must, by virtue of Rule 319(1), be a motion, and, by Rule
319(2), must be supported by affidavit. Section 10(3), standing
alone, appears to support the prevailing practice; there is
nothing to be proved by affidavit, and all the Minister need do
is name the person, and the Court must issue the writ. How
ever, it is apparent from subsections (1) to (4) of section 10
that Parliament intended that the powers of search and seizure
granted by such a writ be exercised only by a "peace officer".
If this is correct, there are two problems to be resolved before
this application can be disposed of. (1) Is an appointment under
section 17(3) of the Royal Canadian Mounted Police Act what
creates a "peace officer", and, if not, what does? (2) Is W a
"peace officer", for that purpose? There is no evidence that W
has been so appointed, if this is what is necessary, and the
Court is not prepared to deal with these questions under Rule
324, but requires an appearance and vive voce argument.
APPLICATION ex parte.
SOLICITOR:
Deputy Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The Minister of National Health
and Welfare applied, ex parte, pursuant to section
10(3) of the Narcotic Control Act' for the issue of
a writ of assistance to one W. The motion was
presented in writing, without appearance, pursuant
to Rule 324. There was no affidavit filed in sup
port of the application although the application
itself did identify W as a member of the Royal
Canadian Mounted Police engaged in the enforce
ment of the Narcotic Control Act. I refused to deal
with the application pending the filing of a sup
porting affidavit.
Section 10(3) of the Act provides:
10. (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.
The relevant paragraphs of Rule 319 are:
(1) Where any application is authorized to be made to the
Court, a judge or a prothonotary, it shall be made by motion.
(2) A motion shall be supported by affidavit as to all the
facts on which the motion is based that do not appear from the
record, which affidavit shall be filed . ....
I must admit that my initial rejection of the
application was reactive rather than considered.
The application which section 10(3) of the Act
authorizes must, by virtue of Rule 319(1), be a
motion and, by Rule 319(2), must be supported by
an affidavit. Subsequently, counsel for the Minis
ter sought, and obtained, a private meeting with
me. He pointed out that the procedure, which I
had rejected, had been followed for a considerable
time and he asked me to reconsider my rejection
while indicating a willingness to adopt a different
procedure should it be the Court's considered wish.
The Chief Justice of this Court, then President
of the Exchequer Court of Canada, held with
reference to applications for writs of assistance
under another statute 2 :
... 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
' R.S.C. 1970, c. N-1 as amended by R.S.C. 1970 (2nd
Supp.) c. 10, s. 64(2).
2 In re Writs of Assistance [1965] 2 Ex.C.R. 645 at page
651.
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".
There is a distinction between the pertinent provi
sion of the Customs Act 3 (and that of the Excise
Act 4 ) on the one hand, and the Narcotic Control
Act (and the Food and Drug Act 5 ) on the other.
The pertinent section of the Customs Act contains
within itself the requirement that the person to
whom the writ issues be an "officer" which, by
definition, is "a person employed in the adminis
tration or enforcement" of the Act including "any
member of the Royal Canadian Mounted Police".
Thus the practice, in applications for writs of
assistance under the Customs Act, is that an
affidavit be filed proving that the person named in
the application is an "officer" within the meaning
of that Act. The practice under the Excise Act is
identical.
Section 10(3) of the Narcotic Control Act,
standing by itself, would appear to support the
prevailing practice; there is simply nothing to
prove by affidavit. If the Minister chooses to apply
for a writ of assistance, all that is needed is that he
name a person to whom the writ is to issue and the
Court must issue it. However, it is apparent from
subsections (1) and (4) of section 10 that Parlia
ment intended that the powers of search and sei
zure granted by a writ of assistance be exercised
only by a "peace officer".
The Act does not itself define "peace officer"
nor does it adopt the definition of that term in any
other statute. Without reciting the definition there,
it is manifest that that term as used in the Crimi
nal Code 6 embraces classes of persons, e.g.,
mayors, reeves, prison guards, for whom the Min
ister's right to demand a writ of assistance ought
not be conceded by anyone purporting to act in a
judicial capacity without an explicit direction of
Parliament. At common law, the term "peace
officer" appears to embrace that class of public
functionary whose authority permits him to arrest
3 R.S.C. 1970, c. C-40, s. 145.
4 R.S.C. 1970, c. E-12, s. 78.
5 R.S.C. 1970, c. F-27, s. 37(3) and 45.
6 R.S.C. 1970, c. C-34, s. 2 as amended by S.C. 1972, c. 13,
s. 2.
without warrant 7 . Again, the most explicit Parlia
mentary direction would be welcome if it was the
intention that the Minister may demand, of this
Court, a writ of assistance to issue not only to a
constable but to a justice of the peace, coroner,
sheriff or watchman appointed pursuant to the
Statute of Winchester 8 or his assistant. It strikes
me that the term "peace officer", as used in
section 10 of the Narcotic Control Act must have
been intended by Parliament to be somewhat nar
rower than that comprehended by the common law
or adopted by the Criminal Code.
Be that as it may, any other definition of "peace
officer" has, in so far as members of the RCMP
are concerned, been supplanted by a power of
appointment vested in the Commissioner. Section
17 of the Royal Canadian Mounted Police Act 9 ,
provides in part:
(3) Every officer, and every person appointed by the Com
missioner under this Act to be a peace officer, is a peace officer
in every part of Canada and has all the powers, authority,
protection and privileges that a peace officer has by law.
By definition "officer" means a commissioned offi
cer of the force, holding the rank of Sub-Inspector
through Commissioner. It is apparent that not
every member of the RCMP is necessarily a peace
officer; the officers are, and so are other persons
appointed by the Commissioner 10 , who, it seems,
need not necessarily be members of the force.
This Court's obligation in dealing with such an
application, albeit extremely limited in scope, is
very real:
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
7 Commentaries on the Laws of England, William Black-
stone, Esq., Book I, Ch. 9; Book IV, Ch. 21.
8 13 Edw. I (1285), c. 6.
9 R.S.C. 1970, c. R-9.
10 Section 17(4) extends the rights etc. of a customs and
excise officer to every member who is appointed a peace officer
by the Commissioner while 17(3) contemplates him appointing
a person, not a member, to be a peace officer. The emphasis is
mine.
care the circumstances in which one of these writs should be
issued and the form which the writ should take."
The form of the writ sought is not in issue here.
If I am right in holding that the issue of a writ
of assistance under section 10(3) of the Narcotic
Control Act must be to a peace officer, then there
are two problems to be resolved before this
application can be disposed of. The first is whether
an appointment under section 17(3) of the Royal
Canadian Mounted Police Act is what creates a
peace officer for purposes of section 10(3) of the
Narcotic Control Act, and if not, what does? Once
that definition is established the remaining, and
narrow, question is whether W is a "peace officer"
for that purpose. I have no evidence that he has
been so appointed by the Commissioner, if that is
what is necessary.
I am not prepared to deal with these questions
under Rule 324. I will require an appearance and
viva voce argument. The identical considerations
apply to the concurrent application under the Food
and Drug Act, with respect to the same RCMP
member (Court No. T-1875-76) and the same
order will go.
ORDER
The application is adjourned sine die with leave
to the applicant to file additional material in its
support and to present oral argument at a date to
be arranged through the Registry, during Long
Vacation or otherwise.
In re Writs of Assistance [ 1965] 2 Ex.C.R. 645 at page
647.
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.