T-2644-84
Jim Pattison Industries Ltd. (Plaintiff)
v.
The Queen (Defendant)
and
T-2724-84
Mediacom Industries Inc. and Mediacom Inc.
(Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Vancouver, January 9
and 11, 1985.
Constitutional law — Charter of Rights — Search or sei
zure — Defendant seizing and retaining copies of plaintiffs'
documents in 1976 pursuant to s. 10(1) of Combines Investiga
tion Act — Supreme Court of Canada in Hunter et al. v.
Southam Inc. holding ss. 10(1) and (3) of Act of no force and
effect as of April 17, 1982 because inconsistent with s. 8 of
Charter — Present use of information in documents not con
travening plaintiffs' common law rights nor rights under s. 8 of
Charter — Crown's right to retain and use copies of material
lawfully vested in 1976 and not abrogated by subsequent
repeal of enabling statute — Charter not having retrospective
effect — Charter silent about right to "retain" or "use"
property — Test whether reasonable expectation documents
properly seized and legally copied will not be used to achieve
purpose for which seized — Exclusion by Court of lawfully
obtained evidence about to be filed in another court would
bring administration of justice into disrepute — Combines
Investigation Act, R.S.C. 1970, c. C-23, ss. 10(1),(3), 11(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.), s. 8.
Combines — Plaintiffs' documents seized amd copied in
1976 pursuant to ss. 10(1) and 11(2) of Combines Investigation
Act — Supreme Court of Canada decision in Hunter et al. v.
Southam Inc. rendering s. 10(1) of Act inoperative as of April
17, 1982 because inconsistent with s. 8 of Charter — Charter
not having retrospective effect — Crown's right to use copies
lawfully vesting in 1976 and not abrogated by subsequent
repeal of enabling statute — Present use of information not
contravening plaintiffs' common law rights nor rights under s.
8 — Charter silent as to retention and use of property —
Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 10(1),(3),
11(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.), s. 8.
Evidence — Copies of documents seized under Combines
Investigation Act — Federal Court having jurisdiction to
make declaration sought — Declaration holding Crown not
authorized to use material tantamount to order prohibiting
Crown from tendering in criminal proceedings legally obtained
evidence — Exlusion of lawfully obtained evidence to be filed
in another court would bring administration of justice into
disrepute — Federal Court Rules, C.R.C., c. 663, R. 475.
This is a special case under Rule 475. In 1976 the defendant
seized and copied documents belonging to the plaintiffs pursu
ant to subsection 10(1) of the Combines Investigation Act. In
1982 the Charter of Rights came into effect. Section 8 of the
Charter guaranteed the "right to be secure against unreason
able search or seizure". In 1984 the Supreme Court of Canada
held in Hunter et al. v. Southam Inc. that subsections 10(1)
and 10(3) of the Combines Investigation Act were inconsistent
with section 8 of the Charter and therefore of no force or effect.
The two subsections are therefore invalid as of April 17, 1982.
The question is whether the present use or retention of the
information in the documents contravenes the plaintiffs'
common law rights and their new rights under section 8 of the
Charter. The plaintiffs submit that common law rights cannot
be invaded otherwise than by virtue of a specific valid author
ity. They also claim that the right to use and dispose is a right
independent of the ownership of the materials and that their
right is specifically protected by the Charter and cannot be
overridden by implication or even expressly except with safe
guards not present in this case.
Held, the actions should be dismissed.
Dickson J. (as he then was) in the Southam case held that
"The guarantee of security from unreasonable search and
seizure only protects a reasonable expectation." The question
thus becomes whether it is a reasonable expectation that docu
ments properly seized and legally copied at the time will not be
used to achieve the very purpose for which their seizure was
executed. The Federal Court has the competence to make the
declaration sought by the plaintiffs. Nevertheless any court is
reluctant to make a declaration that would impinge directly on
the course of a proceeding in a criminal matter before another
court. A declaration that the use of information from copies of
documents taken from the plaintiffs was not lawful would have
the same effect as deciding upon the admissibility of documents
in a forthcoming trial in another court. The Crown's right to
retain and use copies of the material lawfully vested in 1976
and was not abrogated by the subsequent repeal of the enabling
statute. The exclusion by this Court of lawfully obtained evi
dence about to be filed in another court would bring the
administration of justice into disrepute.
The plaintiffs are attacking the "retention" and "use" of
their property about which the Charter is silent. Property rights
as such are not protected by the Charter. "Retention" and
"use" must be distinguished from "seizure".
CASES JUDICIALLY CONSIDERED
APPLIED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; 11
D.L.R. (4th) 641; 55 N.R. 241; [1984] 6 W.W.R. 577;
33 Alta. L.R. (2d) 193; 84 DTC 6467; 14 C.C.C. 97; 41
C.R. (3d) 97; 9 C.R.R. 355; Blackwoods Beverages Ltd.
v. R., [1985] 2 W.W.R. 159; 47 C.P.C. 294 (Man. C.A.);
Samuel Varco Ltd. v. The Queen et al. (1978), 87 D.L.R.
(3d) 522 (F.C.T.D.); Lyons v. R., [1985] 2 W.W.R. 1
(S.C.C.); St. Catharines v. H.E.P. Com'n., [1930] 1
D.L.R. 409 (J.C.P.C.) affirming [1928] 1 D.L.R. 598
(Ont. S.C.).
CONSIDERED:
Colet v. The Queen, [1981] 1 S.C.R. 2; Olmstead v.
United States of America, 277 U.S. 438, 72 L ed 944
(9th Cir. 1928); Reg. v. Lushington (1894), 1 Q.B. 420.
REFERRED TO:
Attorney General of Canada v. Stuart, [ 1983] 1 F.C. 651
(C.A.); R. v. Longtin (1983), 5 C.C.C. (3d) 12 (Ont.
C.A.); Thyssen Canada Limited v. The Queen, [1984] 2
F.C. 27; 84 DTC 6049 (T.D.); In re Gittens, [1983] 1
F.C. 152 (T.D.); Montreal Lithographing Ltd. v. Deputy
Minister of National Revenue, [1984] 2 F.C. 22; 8
C.R.R. 299 (T.D.); Axler v. The Queen, judgment dated
May 31, 1984, Federal Court, Trial Division, T-2631-81,
not reported; Re Becker and The Queen in right of
Alberta (1983), 148 D.L.R. (3d) 539 (Alta. C.A.); Re
Williams and Attorney-General for Canada et al.
(1983), 45 O.R. (2d) 291 (Div. Ct.); Pac. Finance Co. v.
Ireland, [1931] 2 W.W.R. 593 (Alta. C.A.); Re Attor-
ney-General of Nova Scotia and Pye (1983), 7 C.C.C. 3d
116 (N.S. C.A.); Entick v. Carrington (1765), 19
Howell's State Trials 1029; Katz v. United States, 389
U.S. 347, 19 L ed 2d 576, 88 S. Ct. 507 (9th Cir. 1967).
COUNSEL:
J. Giles, Q.C. and Robert Armstrong, Q.C.
for plaintiffs.
M. Humphries and S. D. Frankel for
defendant.
SOLICITORS:
Farris, Vaughan, Wills & Murphy, Vancou-
ver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
DUBE J.: This special case under Rule 475 of
the Federal Court [Federal Court Rules, C.R.C.,
c. 663] was set down for hearing and was heard in
Vancouver on January 9, 1985. The relevant facts
were agreed upon. For brevity they may be
reduced as follows:
In the summer of 1976 the defendant seized
documents from the plaintiffs, copied them,
returned the originals to the plaintiffs and kept
copies, acting under the provisions of subsection
10(1) of the Combines Investigation Act,' which
reads as follows:
10. (1) Subject to subsection (3), in any inquiry under this
Act the Director 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 or
other document that in the opinion of the Director or his
authorized representative, as the case may be, may afford such
evidence.
On April 17, 1982 the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] came into effect. On Septem-
ber 17, 1984, the Supreme Court of Canada
released its judgment in Hunter et al. v. Southam
Inc., 2 holding that the said subsection 10(1) and
subsection 10(3) of the Combines Investigation
Act are inconsistent with section 8 of the Charter
and therefore of no force or effect. Section 8 of the
Charter reads as follows:
8. Everyone has the right to be secure against unreasonable
search or seizure.
' R.S.C. 1970, c. C-23.
2 [1984] 2 S.C.R. 145; 11 D.L.R. (4th) 641; 55 N.R. 241;
[1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 84 DTC 6467;
14 C.C.C. 97; 41 C.R. (3d) 97; 9 C.R.R. 355.
It is common ground that the two subsections of
the Combines Investigation Act are therefore
invalid as of April 17, 1982. The question before
the Court, to be answered by me in this special
case, is as follows:
Does the defendant have lawful authority to retain or make any
use or disposition whatsoever, without the consent of the plain
tiffs, of any document, copy of document or information taken
from the plaintiffs under section 10 of the Combines Investiga
tion Act as alleged herein?
It is now well established that the Charter has
no retrospective effect 3 but the plaintiffs' main
contention, in a nutshell, is that even if the seizure
of the documents was valid when effected in 1976,
the present use or retention of the information in
the documents contravenes the plaintiffs' common
law rights and their new rights under section 8 of
the Charter as now clearly defined by the Supreme
Court in Southam.
The plaintiffs submit, firstly, that common law
rights cannot be invaded otherwise than by virtue
of a specific valid statutory authority. For that
proposition they rely mostly on Colet v. The
Queen. 4 In that case the Supreme Court of
Canada held that Canadian citizens have a long-
standing right to the control of their own property
and that the warrant held by the police officers in
that case did not specify the right to enter and
search the plaintiffs home. Ritchie J. said at page
10:
... any statutory provision authorizing police officers to invade
the property of others without invitation or permission would be
an encroachment on the common law rights of the property
owner and in case of any ambiguity would be subject to a strict
construction in favour of the common law rights of the owner.
The old maxim that every man's home is his
castle still holds true today. In the case at bar,
however, there is no ambiguity in the defendant's
3 See: Attorney General of Canada v. Stuart, [1983] 1 F.C.
651 (C.A.); R. v. Longtin (1983), 5 C.C.C. (3d) 12 (Ont.
C.A.); Thyssen Canada Limited v. The Queen, [1984] 2 F.C.
27; 84 DTC 6049 (T.D.); In re Gittens, [1983] 1 F.C. 152
(T.D.).
4 [1981] 1 S.C.R. 2.
right of search and seizure in 1976. The only right
that might be possibly challenged is Her right to
use and dispose of the matter in 1985. The plain
tiffs contend that this right to use and dispose is a
right independent of the ownership of the material
from which copies were made. The plaintiffs claim
that their right is specifically protected by the
Charter and cannot be overridden by implication
or even expressly, except with safeguards not
present in this case.
The plaintiffs canvassed early classic American
decisions dealing with civil liberty and, most no
tably, this passage reported in Olmstead v. United
States of America, 5 wherein Mr. Justice Brandeis
in his dissenting opinion revived his reference to
Lord Camden's judgment in Entick v. Carrington 6
as follows [at pages 474-475 U.S.]:
The principles laid down in this opinion affect the very essence
of constitutional liberty and security....they apply to all inva
sions on the part of the government and its employés of the
sanctity of a man's home and the privacies of life. ...but it is
the invasion of his indefeasible right of personal security,
personal liberty and private property, where that right has
never been forfeited by his conviction of some public offen
ce... .but any forceable and compulsory extortion of a man's
own testimony or of his private papers to be used as evidence of
a crime or to forfeit his goods, is within the condemnation of
that judgment.
Those fundamental rights embedded in the
common law were revisited by Dickson J., as he
then was, in the Southam case when he referred to
Katz v. United States,' and the notion of Stewart
J. on the right to privacy described as the "right to
be let alone by other people". However, Dickson J.
went on to say [at page 159 S.C.R.]:
The guarantee of security from unreasonable search and sei
zure only protects a reasonable expectation.
In the instant case—it being agreed that the
seizure itself was legal at the time it was made—is
it a reasonable expectation that documents proper
ly seized and legally copied at the time will not be
used to achieve the very purpose for which their
5 277 U.S. 438, 72 L ed 944 (9th Cir. 1928).
6 (1765), 19 Howell's State Trials 1029.
389 U.S. 347, 19 L ed 2d 576, 88 S. Ct. 507 (9th Cir.
1967).
seizure was executed? The answer to that question
will resolve the special case in issue.
In a recent Court of Appeal of Manitoba deci
sion, Blackwoods Beverages Ltd. v. R., 8 the
majority of the Court quashed an order of the
Court of Queen's Bench holding that documents
seized under the provisions of subsections 10(1)
and 10(3) of the Combines Investigation Act were
inadmissible at a preliminary inquiry to be held on
the ground that these subsections were of no force
and effect in view of the Southam decision. The
documents in question were searched and seized
between June 25, 1977 and December 11, 1981.
This paragraph from O'Sullivan J.'s judgment [at
page 2] properly reflects the majority view of the
Court:
The seizure of documents in this case was perfectly lawful, in
my opinion. Sections 10(1) and 10(3) of the Combines Investi
gation Act (R.S.C. 1970, chap. C-23) did not become unconsti
tutional until the Charter came into force. The seizure occurred
before that date. The continued detention of documents seized
has been rendered unlawful by reason of the Charter but I do
not see how that affects copies, notes or précis made while the
seizure and detention were lawful.
All three Judges felt that their Court was of
competent jurisdiction to hear the application. On
that score Monnin C.J.M. said that in criminal
matters the provincial court is the proper court to
deal with matters of evidence "from the inception
of the trial until its conclusion."
The plaintiffs in the case at bar insist, of course,
that the question to be resolved here is not the
admissibility of evidence but the authority of the
defendant to use the information and facts record
ed in admissible documents, an invasion of privacy,
thus a question within the exclusive jurisdiction of
the Federal Court.
I agree that this Court has the competence to
make the declaration prayed for by the plaintiffs.
Nevertheless, any court is reluctant to make a
declaration that would impinge directly on the
course of a proceeding in a criminal matter before
8 [1985] 2 W.W.R. 159; 47 C.P.C. 294 (Man. C.A.).
another court. It is agreed in the present case that,
following a preliminary inquiry, the plaintiffs were
committed to stand trial before the Supreme Court
of Ontario, which trial is to commence on Febru-
ary 11, 1985. Copies of the seized documents were
filed at the preliminary inquiry and were made
available by Crown counsel at that time to the
presiding Judge, to counsel and to the court
reporter.
In Samuel Varco Ltd. v. The Queen et a1., 9
Cattanach J. formerly of this Court and now
retired, refused to grant a declaration which, in his
view, would be tantamount to usurping a function
of the Judge presiding over the criminal matter. In
his decision the learned Judge reviewed the juris
prudence on the discretion to be exercised in the
granting of declaratory orders. The descriptive
words which most often arise from the various
authorities are: "with a proper sense of responsibil
ity", "sound and accepted judicial principles",
"sparingly", "with great care and jealously",
"with extreme caution", "with a marked reluc
tance to trespass into the jurisdiction of another
tribunal". Again, I understand that I am not called
upon to decide upon the admissibility of docu
ments in a forthcoming trial in another court, but,
surely, a declaration from this Court—arising
from a negative answer to the question put in this
special case—would have that very same effect.
It must also be borne in mind that the evidence
presumably to be filed at the criminal trial does
not consist of the original documents. They were
returned to the plaintiffs. The originals were
microfilmed as provided for under subsection
11(2) of the Act, which reads as follows:
11... .
(2) the Director may have copies made (including copies by a
process of photographic reproduction) of any books, papers,
records or other documents referred to in subsection (1), and
such copies, upon proof orally or by affidavit that they are true
copies, in any proceedings under this Act are admissible in
evidence and have the same probative force as the originals;
where such evidence is offered by affidavit it is not necessary to
prove the signature or official character of the deponent if that
information is set forth in the affidavit or to prove the signature
or official character of the person before whom such affidavit
was sworn.
9 (1978), 87 D.L.R. (3d) 522 (F.C.T.D.).
That subsection was legal and in force at the
time of the seizure and it has not been struck down
by the Southam decision. The majority of the
Supreme Court of Canada in another very recent
decision, Lyons v. R., 1 ° held that interceptions by
an electronic device if "lawfully made" at the time
are admissible as evidence.
I do accept the defendant's submission that the
Southam decision rendering inoperative subsec
tions 10(1) and 10(3) has the same effect as a
pronouncement that these provisions were repealed
at the coming into force of the Charter and that,
at common law, the repeal of a statute does not
affect completed transactions. What is done is
done. In St. Catharines v. H.E.P. Com'n," the
Privy Council had to deal with the effect of a
repeal upon acts previously done. Pursuant to stat
utes, later repealed, an agreement was entered into
by the Hydro Electric Power Commission of
Ontario. The Privy Council held that the repealed
Acts still remained the standard of reference for
determining rights and liabilities created there-
under.
It may be concluded, therefore, that the Crown's
right to retain and use copies of the material
lawfully vested in 1976 and was not abrogated by
the subsequent repeal of the enabling statute.
Moreover, a declaration from me holding that
the defendant has no lawful authority to make use
of the material in question would be tantamount to
an order prohibiting the Crown from tendering in
criminal proceedings legally obtained evidence,
which is contrary to long-established principles of
law. In Reg. v. Lushington, 12 the Queen's Bench
Division of England was dealing with the produc
tion of an allegedly stolen property by the purchas
er in a criminal extradition case. Wright J. had
this to say at page 423:
10 [1985] 2 W.W.R. 1 (S.C.C.).
" [1930] 1 D.L.R. 409 (J.C.P.C.) affirming [1928] 1 D.L.R.
598 (Ont. S.C.).
' 2 (1894), 1 Q.B. 420.
In this country I take it that it is undoubted law that it is
within the power of, and is the duty of, constables to retain for
use in Court things which may be evidences of crime, and
which have come into the possession of the constables without
wrong on their part.
In my view, the exclusion by this Court of
lawfully obtained evidence, about to be filed in
another court, would bring the administration of
justice into disrepute. Again, plaintiffs insist that
they are not attacking the seizure of the docu
ments but their "retention" and "use". Yet, the
Charter is silent as to the retention and use of
property. In fact, property rights as such are not
protected by the Charter. 13 There are no words in
section 8 of the Charter that would protect the
right of a Canadian citizen to be secure against
unreasonable "retention" or "use". The plain
meaning of the word "seizure" is the forcible
taking possession. 14 "Retention" is something else.
"Use" is something else again. The distinction is
quite clear in the Criminal Code [R.S.C. 1970, c.
C-34] - of Canada: for instance, something may be
"seized" under section 445 and "detained" under
section 446.
For all those reasons, my answer to the question
put in this special case is in the affirmative. It
follows that the two actions, heard together, are
dismissed with costs.
13 See: Montreal Lithographing Ltd. v. Deputy Minister of
National Revenue, [1984] 2 F.C. 22; 8 C.R.R. 299 (T.D.);
Azler v. The Queen, judgment dated May 31, 1984, Federal
Court, Trial Division, T-2631-81, not reported; Re Becker and
The Queen in right of Alberta (1983), 148 D.L.R. (3d) 539
(Alta. C.A.); Re Williams and Attorney-General for Canada
et al. (1983), 45 O.R. (2d) 291 (Div. Ct.).
14 See: Pac. Finance Co. v. Ireland, [1931] 2 W.W.R. 593
(Alta. C.A.); Re Attorney-General of Nova Scotia and Pye
(1983), 7 C.C.C. (3d) 116 (N.S. C.A.).
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.