Judgments

Decision Information

Bertram S. Miller Ltd. v. R. (F.C.A.)

Collection Judgments
Date 1986-06-19
Report citation [1986] 3 F.C. 291
File numbers a-515-85
Subjects Agriculture
Constitutional Law
Construction of Statutes

Decision Content

A-515-85
The Queen (Appellant) (Defendant)
v.
Bertram S. Miller Ltd. (Respondent) (Plaintiff)
INDEXED AS: BERTRAM S. MILLER LTD. V. R. (F.C.A.)
Court of Appeal, Heald, Ryan and Hugessen JJ.- Fredericton, January 8, 9; Ottawa, June 19, 1986.
Constitutional law - Charter of Rights - Criminal process - Search or seizure - Infested trees - Confiscation and destruction of imported trees, without warrant, under Plant Quarantine Act - Seizure not unreasonable within meaning of s. 8 Charter - 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. 7, 8, 15, 24(1) Plant Quarantine Act, R.S.C. 1970, c. P-13, ss. 3(2), 4(h), 6(1)(a), 9(4),(5)(b) - Plant Quarantine Regulations, SOR/76- 763 (consolidated in C.R.C., c. 1273), ss. 4, 5(1), 7 (as am. by SOR/80-246), 16, 22 - Canadian Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(a),(b), 2(e) - Interpretation Act, R.S.C. 1970, c. I-23, s. 26(7) - Combines Investigation Act, R.S.C. 1970, c. C-23, s. 10(1),(3).
Agriculture - Imported trees infested by insect larvae Confiscation and destruction of trees, without warrant, under Plant Quarantine Act - Public interest in destruction of trees outweighing interest protected by Charter s. 8 - Whether right to compensation exists - Plant Quarantine Act, R.S.C. 1970, c. P-13, ss. 3(2), 4(h), 6(1)(a), 9(4),(5)(b) - Plant Quarantine Regulations, SOR/76-763 (consolidated in C.R.C., c. 1273), ss. 4, 5(1), 7 (as am. by SOR/80-246), 16, 22 - 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. 7, 8, 15, 24(1).
Construction of statutes - Plant Quarantine Act - Confis cation and destruction of infested trees under Act - Whether presumption Parliament not intending to deprive citizen of lawfully held property without compensation applicable so as to entitle respondent to compensation - Plant Quarantine Act, R.S.C. 1970, c. P-13, ss. 3(2), 4(h), 6(1)(a), 9(4),(5)(b) - Plant Quarantine Regulations, SOR/76-763 (consolidated in C.R.C., c. 1273), ss. 4, 5(1), 7 (as am. by SOR/80-246), 16, 22 Federal Court Rules, C.R.C., c. 663, RR. 408(1), 412(1) Freshwater Fish Marketing Act, R.S.C. 1970, c. F-13 Narcotic Control Act, R.S.C. 1970, c. N-1, s. 3(1).
The respondent imported three lots of ornamental trees and shrubs from three different nurseries in the United States. Upon inspecting the stock at the respondent's own premises, as agreed and without a warrant-it is not required by the Plant Quarantine Act-, inspectors of the Federal Department of Agriculture found some of the trees to be infested with what
was later identified as gypsy moth larvae. The inspectors formed the opinion that there was a reasonable danger that the whole shipment was or could shortly become infested. They therefore confiscated the trees and ordered the respondent to destroy them. The inspectors themselves destroyed the trees when the order was not obeyed.
The Trial Judge [[1985] 1 F.C. 72] found that the respond ent had been the victim of an unreasonable search and seizure, contrary to section 8 of the Charter, and awarded it compensa tion for its damages. Paragraph 6(1)(a) of the Act was declared inoperative to the extent of its inconsistency with section 8 of the Charter. This is an appeal from that decision.
Held (Heald J. dissenting), the appeal should be allowed.
Per Ryan J.: The evidence was sufficient to establish that the larvae identified as gypsy moths came from a particular lot of trees from a particular source.
The inspection was not carried out pursuant to paragraph 6(1)(a) of the Act but pursuant to section 7 of the Regulations. There was nothing unreasonable about the "search" or inspec tion. The importer had consented to it and the inspection was routine and purely administrative in nature.
The real issue is whether the confiscation and destruction of the trees and shrubs under subsection 9(4) of the Act was unreasonable within the meaning of section 8 of the Charter.
Subsection 9(4) confers authority to order the destruction of infested plants by the person from whom it is confiscated, and that authority is wide enough to authorize the actual destruc tion of the plants by departmental officials where the owner has failed to execute the order issued under subsection 9(4). Sec tion 22 of the Regulations confers a power supplemental to subsection 9(4) of the Act with respect to the destruction and disposition of confiscated plants. The destruction called for the exercise of ministerial authority under section 22, and its delegation was in compliance with that section.
The confiscation and destruction of the trees and shrubs constituted a seizure within the meaning of section 8 of the Charter and that seizure was not unreasonable; it was merely a step in an administrative process and had nothing to do with criminal law. It would be undesirable to introduce a relatively inflexible warrant requirement into our administrative law system. In this case, there was a powerful public interest in safeguarding New Brunswick forests against what might well have been a very damaging infestation.
While privacy is the most important interest safeguarded by section 8, the interest a person has in being secure against unreasonable seizure of his property is also safeguarded. How ever, in this case, there was an "emergency situation", and thus neither a warrant nor other authorization from an impartial arbiter was a necessary precondition. Furthermore, the stand ard provided by subsection 9(4) is a reasonable standard: there must be a reasonable belief that the plants are hazardous.
The absence of compensation is not enough to brand the seizure of the importer's goods as unreasonable.
The inspectors believed that there was danger of the infesta tion spreading and they had reasonable grounds for their belief. In deciding that the entire shipment should be destroyed, even if only one lot was found to be infested, the inspectors may have erred on the side of caution. But the consequences of an "invasion" were so serious that they were entitled to do so.
The importer cannot invoke paragraphs 1(a) and (b) of the Bill of Rights because it is a corporation. And in view of the emergency situation, the duty to act fairly imposed by para graph 2(e) did not extend to a duty to grant a hearing. Section 7 of the Charter is not applicable since it provides no protection against deprivation of security of property. Nor can section 15 of the Charter be relied upon, as it was not in force at the material time herein.
The presumption that Parliament does not intend to deprive the citizen of his lawfully held property without compensation does not apply in this case. The terms of the statute herein are inconsistent with a general statutory right to compensation existing apart from the Minister's right, in provisions 3(2) and 4(h) of the Act, to order compensation in some destruction cases.
The Trial Judge also erred in awarding damages because when the goods were destroyed, they had little or no market value, being infected with gypsy moth larvae.
Per Hugessen J.: The Trial Judge's findings of fact are not to be interfered with. The issue herein is solely one of law: are the relevant provisions of the Act and Regulations contrary to the Charter? Since there was agreement between the respondent and the inspectors that the shipment would be inspected at the respondent's premises, the Trial Judge's finding that the "search and seizure" powers in paragraph 6(1)(a) of the Act was incompatible with section 8 of the Charter was irrelevant.
The question remains whether the confiscation and destruc tion provisions of subsection 9(4) of the Act are contrary to section 8 of the Charter. Subsection 9(4) is not inoperative as permitting an unreasonable seizure. According to common law, the inspectors' action was not illegal since they acted on reasonable belief, as required by subsection 9(4). With respect to the Charter, the test of what is "unreasonable" for the purposes of section 8 of the Charter will vary from case to case. However, there is clearly a category of public health- and safety-related inspections carried out in commercial or industri al premises where a warrantless search and seizure, such as one made pursuant to subsection 9(4), is not only reasonable but essential for the protection of the public good.
The purpose of the Plant Quarantine Act is the protection of forests and farms from infestation with parasites. Normally, the inspected premises will be out-of-doors or open to the public. There can be no reasonable expectation of privacy in the things searched: plant material or parasites. The search must be conducted at a reasonable time and be based upon reasonable belief. Once plant material is found to be infested and to constitute a hazard, the public interest in its seizure and destruction outweighs any interest whose protection is envisaged by the Charter.
The presumption of a right to compensation does not apply in this case. Firstly, because the facts to support a claim for compensation based on that principle were not pleaded. Secondly, even if the claim had been properly pleaded, because the property seized in this case was not lawfully possessed, not having passed inspection under the Act. The deprivation of such unlawful possession can create no presumption of an intent to compensate.
Per Heald J. (dissenting): The appeal should be dismissed.
It is unecessary and undesirable to consider the applicability of section 8 of the Charter, or section 7 thereof, or paragraphs 1(a) and 2(e) of the Bill of Rights. The respondent is entitled to compensation based on the Supreme Court of Canada decision in Manitoba Fisheries, [1979] 1 S.C.R. 101.
The goods destroyed were not valueless, nor were they a menace, nor were they illegally held at the time of taking. According to the evidence—larvae were found on only 15 trees, all in the same lot—there could not have been any shadow of suspicion with respect to over half of the shipment. Nor was there any evidence that the wind could have carried the larvae to the other trees. Nor was there conclusive evidence that the gypsy moth larvae examined came from those trees. The ship ment therefore had a real and substantial value, it did not represent a menace and it was lawfully held by the respondent.
With respect to the scheme of the Act and the Regulations, reference was made to the principle enunciated by Lord Atkin- son in Central Control Board (Liquor Traffic) v. Cannon Brewery Co., [1919] A.C. 744 (H.L.). It is not a question of implying a general right to compensation: the legal right to compensation exists unless a clear and unequivocal contrary intention is expressed in the relevant legislation. There is no such clear and unequivocal contrary intention in the Plant Quarantine Act or Regulations.
There is no basis to disturb the findings of the Trial Judge with respect to the value of the shipment.
It is true that the Manitoba Fisheries principle was not specifically pleaded, but all the essential facts relating to its applicability have been pleaded, and that is all that is neces sary. Furthermore, counsel for the appellant addressed the
question of compensation both at trial and on the appeal. The pleadings are therefore not defective.
The respondent is only entitled to compensation for goods destroyed. Even if there was valid claim for damages under the Charter or the Bill of Rights, this is not a case for either general or exemplary damages since the Trial Judge found that the inspectors carried out their duty in conformity with the Act and Regulations.
CASES JUDICIALLY CONSIDERED APPLIED:
R. v. Harrison, [1977] 1 S.C.R. 238; R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.); Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967); A. M. Smith & Co., Ltd. v. R., [1982] 1 F.C. 153 (C.A.); B.C. Medical Assn. v. R. in Right of B.C. (1984), 58 B.C.L.R. 361 (C.A.); Stein et al. v. 'Kathy K" et al. (The Ship), [1976] 2 S.C.R. 802; Donovan v. Dewey, 452 U.S. 594 (1981); 101 S. Ct. 2534 (1981); Re Belgoma Transpor tation Ltd. and Director of Employment Standards (1985), 51 O.R. (2d) 509 (C.A.).
DISTINGUISHED:
Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.
REFERRED TO:
Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Attorney-General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.); Central Control Board (Liquor Traffic) v. Cannon Brewery Co., [1919] A.C. 744 (H.L.); R. in right of the Province of British Columbia v. Tener et al., [1985] 1 S.C.R. 533; Lever Brothers, Ltd. v. Bell, [1931] 1 K.B. 557 (C.A.); In re Vandervell's Trusts (No. 2), [1974] Ch. 269 (C.A.); Karas et al. v. Rowlett, [1944] S.C.R. 1; Dhalla v. Jodrey (1985), 16 D.L.R. (4th) 732 (N.S.C.A.); Entick v. Carrington (1765), 19 St. Tr. 1029; 2 Wils K.B. 275; 95 E.R. 807 (K.B.); White v. Redfern (1879), 5 Q.B.D. 15; De Verteuil v. Knaggs, [1918] A.C. 557 (P.C.).
COUNSEL:
Derek H. Aylen, Q.C. and A. R. Pringle for appellant (defendant).
Mark M. Yeoman, Q.C. for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for appellant (defendant).
Yeoman, Savoie, LeBlanc & Assoc., Monc- ton, New Brunswick, for respondent (plain- tiff).
The following are the reasons for judgment rendered in English by
HEALD J. (dissenting): This is an appeal from a judgment of the Trial Division [[1985] 1 F.C. 72] in which the respondent was awarded damages against the appellant in the amount of $13,439.02 together with costs. The respondent filed a notice "of intention to contend that the decision of the Court below should be varied." The basis of this notice was the respondent's view that it was en titled to general damages and exemplary damages in addition to the special damages awarded by the learned Trial Judge in the sum of $13,439.02.
The respondent owns and operates a nursery business in St. Martins, New Brunswick. Some of its nursery stock is customarily imported from the United States. The stock in issue in this appeal consisted of ornamental trees and shrubs pur chased by the respondent from three different nurseries in the United States: Bald Hill Nurseries Inc., Exeter, Rhode Island (Bald Hill); Cherry Hill Nurseries Inc., West Newbury, Massachu- setts (Cherry Hill); and, Weston Nurseries, Hop- kinton, Massachusetts (Weston). The total ship ment in issue consisted of some 362 plants of which 175 were purchased from Bald Hill, 96 from Cherry Hill and 91 from Weston. It contained, inter alla, the following varieties of ornamental trees and shrubs; spruce; pine; oak; beech; linden; maple; juniper; rhododendron; cotoneaster; azalea and hemlock.
Donald Miller, the Vice-President of the respondent, and the individual mainly engaged in the operation of the respondent nursery applied for and obtained an import permit from Mr. William Weiler, a Programs Officer of Agriculture Canada, at the Saint John Office. This permit was issued on May 13, 1982 and the delivery point for inspection shown thereon was the respondent's nursery at St. Martins, approximately 100 miles distant from St. Stephen, New Brunswick, the
proposed port of entry from the U.S.A. into Canada. The learned Trial Judge observed [at page 74] with respect to this procedure of not carrying out the inspection at the border but rather, on the premises of the importer, that it was "customary for such shipments and for the conve nience of both the importer and the Department". In this case, it is also clear that the importer agreed to this procedure which had also been followed in respect of earlier importations of nur sery stock. At the time of obtaining the permit, Mr. Weiler cautioned Donald Miller to beware of gypsy moths which were causing serious problems in the New England states. He also gave Mr. Miller a pamphlet concerning the gypsy moth which Mr. Miller read prior to going to the U.S.A. for this shipment.
The nursery stock in issue was brought to the respondent's nursery at St. Martins in one enclosed truck during the late evening of May 19, 1982. Inspector Holm of Agriculture Canada trav elled to the nursery for the purpose of inspecting the shipment during the afternoon of Thursday, May 20, 1982. He arrived when the shipment was being unloaded. At that time Mr. Donald Miller and several other individuals were examining one particular tree. They showed Inspector Holm larvae on that tree. Inspector Holm then inspected some 15 of the larger hardwood trees (mostly, sugar maple and oak). He observed some larvae on most of those 15 trees. On some of the trees inspected, he observed two or three larvae. On others he observed six to eight larvae. The leaves were showing signs of defoliation. Holm also inspected some softwood trees as well as some smaller shrubs. He found larvae on some of the softwood trees but did not find any larvae on the smaller shrubs. The only portion of the shipment inspected by Holm was the portion originating from the Bald Hill nursery. He testified that, to his knowledge, there were no larvae on the trees which came from the other two nurseries. He also said that since he thought the larvae could possibly be tent caterpillar or gypsy moth and since he was not positive as to their identity, he decided to collect samples of the larvae and take them to the Saint John office for further examination by his superiors. He also issued a Notice of Detention at that time with respect to the Bald Hill portion of
the shipment ordering the respondent to spray all plants from Bald Hill nursery with an insecticide. Inspector Holm said that he gave those samples to Mr. Weiler on the morning of Friday, May 21, 1982 to be taken to Fredericton for positive identification.
Mr. Fred Titus, a technician employed by the Canadian Forestry Service, testified that he received certain samples of larvae from Mr. Weiler in the afternoon of May 21, 1982, the larvae being from two separate locations. Titus delivered the larvae to Dr. L. P. Magasi, the Head of the Forest Insect and Disease Survey for the Maritimes Forestry Center at Fredericton. Dr. Magasi examined the larvae under a microscope. They also were examined by Dr. Douglas G. Embree, the Program Director of Technical Ser vices in the Canadian Forestry Services. Dr. Embree was qualified at the trial as an expert in insect entomology. The larvae examined by Dr. Magasi and Dr. Embree were from the two sepa rate locations referred to supra, (the respondent's premises and the premises of Maritime Sod Lim ited [hereinafter called Maritime Sod], a competi tor nursery of the respondent at Saint John which also imported nursery stock from the U.S.A. There is no evidence on this record that Maritime Sod imported from the same three nurseries as the respondent). Dr. Magasi was unable to say wheth er the larvae he examined were from Maritime Sod or from the respondent's premises. Dr. Embree testified that he examined two larvae under a microscope. He positively identified them as gypsy moth larvae. He could not state whether the larvae he examined came from the respond ent's trees or from those of Maritime Sod. Never theless, Dr. Magasi and Dr. Embree recommended that "the lots affected" should be burned. A draft memorandum was prepared and signed by Dr. Magasi and delivered to Mr. Weiler on Friday, May 21, 1982 containing, inter alla, the recom mendation for destruction, by burning. In the evening of May 21, 1982, Mr. Weiler advised Don Miller and his father that all three lots of the respondent's shipment would have to be destroyed
due to gypsy moth infestation. Later that evening, Notices of Detention and Destruction were issued and signed by Harvey Holm in respect of all three lots. The respondent did not destroy the stock in question. Subsequently, on Tuesday, May 25, 1982, one A. T. Watt, an official of the New Brunswick Department of Agriculture acting as an Inspector under the Plant Quarantine Act, R.S.C. 1970, c. P-13 and Regulations [Plant Quarantine Regulations, SOR/76-763], informed the respond ent by a hand-delivered letter that all three lots of
nursery stock imported from the U.S.A. must be burned pursuant to subsection 9(4) of that Act.
The entire stock was destroyed by burning on Tuesday, May 25, 1982 by servants of the Provin cial Forestry Department acting as agents and at the request of the Federal Department of Agriculture.
It should be noted before concluding this sum mary of the relevant facts that: the Weston stock was certified by the appropriate Massachusetts authority to be "apparently free from injurious plant pests" on May 17, 1982 and by the United States Department of Agriculture to be "substan- tially free from injurious diseases and pests" on the same date after thorough examination; the Cherry Hill stock was certified on May 17, 1982 by the appropriate Massachusetts authority to be "substantially free from injurious diseases and pests" after thorough examination; and, that the Bald Hill stock was certified on May 17, 1982 by the appropriate Rhode Island authority, after thor ough examination, to be "substantially free from injurious diseases and pests".
The learned Trial Judge found that the destruc tion of the respondent's property was unlawful and that its right to be secure against unreasonable search or seizure, as guaranteed by section 8 of the
Charter [Canadian Charter of Rights and Free doms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] had been denied. Accordingly, applying subsection 24(1) of the Charter,' he awarded the respondent compensation in the amount of $13,439.02 and costs. His rationale for reaching this conclusion reads (at page 83):
In the case at bar, the inspectors did not trespass on their first visit to the nursery, as they had been impliedly invited as a result of the agreement between both parties that the inspection would take place at the nursery. It is my view, however, that in the interval between the discovery of the larvae and the actual destruction of the trees an assessment could have been made by an impartial arbiter as to whether or not to seize and destroy the goods, had the Act so prescribed.
I cannot conclude from the jurisprudence to date, as applied to the facts of the case at bar, that the warrantless search powers conferred by paragraph 6(1)(a) of the Plant Quaran tine Act are necessarily unreasonable and that they ineluctably collide with section 8 of the Charter. There may be circum stances of emergency where the obtention of a warrant would be unfeasible. In my view, however, paragraph 6(1)(a) is inoperative to the extent of its inconsistency with section 8, such as in the present case where it has not been established that the obtaining of such a warrant was unfeasible or even impracticable. Subsection 52(1) of the Charter provides for such situations:
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 and effect.
Under the circumstances, I find that the destruction of the plaintiffs property was unlawful and that his right to be secure against unreasonable search or seizure, as guaranteed by sec tion 8 of the Charter, has been denied.
Counsel for the appellant submitted that the learned Trial Judge erred in finding that there was, on the facts of this case, a warrantless search which constituted an unreasonable search and sei zure by virtue of section 8 of the Charter. In the view I take of this case, it is unnecessary and undesirable to consider the applicability of section 8 of the Charter or for that matter, section 7 of the Charter or paragraphs 1(a) and 2(e) of the Canadian Bill of Rights [R.S.C. 1970, Appendix
' Subsection 24(1) reads:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
III], as submitted by respondent's counsel. 2 Based on the factual situation summarized supra, I have concluded that the principles enunciated by the Supreme Court of Canada in the case of Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101 should be applied in this case. In Manitoba Fish eries (supra), the appellant had been engaged for many years in the business of purchasing fish from fishermen at various lakes in Manitoba and proc essing and selling the fish to customers in the U.S.A. and other parts of Canada. The appellant and other companies like it had over the years built up individual clienteles in what had become a highly competitive business. Parliament enacted the Freshwater Fish Marketing Act [R.S.C. 1970, c. F-13] which came into force on May 1, 1969. Under that legislation the respondent through its agent, the Freshwater Fish Marketing Corporation was granted a commercial monopoly in the export of fish from Manitoba and other participating provinces. As a result the appellant was forced out of business on or about May 1, 1969. The Supreme Court of Canada held that the legislation in ques tion and the Corporation created thereunder had the effect of depriving the appellant of its goodwill as a going concern, thereby rendering its physical assets virtually useless. The Supreme Court held further that the goodwill so taken away constituted property of the appellant for the loss of which no compensation whatever had been paid. At page 118, Mr. Justice Ritchie, in referring to the taking of this property, said:
There is nothing in the Act providing for the taking of such property by the Government without compensation and as I find that there was such a taking, it follows, in my view, that it was unauthorized ....
In support of this conclusion, Ritchie J. relied on the long established rule enunciated by Lord Atkinson in Attorney-General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.), at page 542 where he said:
The recognized rule for the construction of statutes is that, unless the words of the statute clearly so demand, a statute is
2 See: Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 383, per Estey J.
not to be construed so as to take away the property of a subject without compensation.
In this case, the facts establish that the respond ent was the owner of the shipment of trees and shrubs in issue. It is clear that the appellant, by destruction of that shipment through burning took away the respondent's property rights. It is also clear that no compensation for the taking was either offered or paid by the appellant.
Thus, prima facie, the Manitoba Fisheries prin ciple would seem to apply to the facts of this case. However, counsel for the appellant has a twofold response to that view of the matter. Initially, it is his submission that the appellant's employees and agents "did not take valuable property but rather got rid of infested stock that was a menace to everyone, including the respondent." He further submits that the Plant Quarantine Act "does not provide for the taking of valuable property for public purposes, but rather for the control of some thing detrimental to all. There is not the same rationale for compensation as in an expropriation." Implicit in these submissions and, indeed, implicit in the Manitoba Fisheries principle is the assump tion that the property taken was lawfully held by its owner prior to the taking.
In my view, the validity of these submissions are dependent upon the fundamental assumption which they make—namely, that the goods destroyed were valueless or were a menace or were illegally held at the time of taking. On my appreciation of the evidence in this case, I am unable to make any of these assumptions. The respondent's shipment had been certified on May 17, 1982 by Federal and State authorities in the U.S.A. to be substantially or apparently free from injurious plant pests. The shipment which was totally destroyed by the appellant contained some 362 trees and shrubs. Larvae were found on only 15 of the respondent's trees. Larvae were also found on trees imported from the U.S.A. by one of the respondent's competitors at Saint John. The appel lant's expert entomologist examined two larvae under a microscope and identified them as being gypsy moth larvae. Neither he nor anyone else was able to say whether the gypsy moth larvae exam-
fined came from the respondent's trees or those belonging to Maritime Sod at Saint John. Further more, the respondent's imported nursery stock came from three separate nurseries in the U.S.A. There was no evidence of larvae on any of the trees which came from either the Weston or the Cherry Hill nurseries. Thus, there could not have been any shadow of suspicion with respect to over half of the respondent's shipment. It was suggested that there was a possibility of the larvae from the Bald Hill trees being carried by the wind to the other trees. There was no evidence that this had happened or was likely to happen. To the contrary, the evidence was that the larvae on the Bald Hill trees had progressed to a state in their development where such a possibility was remote indeed. In my view, the evidence established a possibility that 15 trees out of a total of 362 were infested with gypsy moth larvae. I do not characterize the proof as being any higher than a possibility in view of the lack of identification of the gypsy moth larvae as having come from the respondent's shipment. According ly, I conclude that the respondent's shipment had real and substantial value and did not represent a menace. I also conclude that the said property was lawfully held by the respondent at the time of its destruction. The respondent paid to the three U.S. nurseries the sum of $8,429.19 Canadian for the shipment in question. Don Miller's uncontradicted evidence was that the normal mark-up at that time was approximately 50%. Thus, the evidence estab lished that the total value of the shipment to the respondent at the time of destruction was in excess of $13,000. Don Miller also testified that the extent of defoliation even on the 15 trees examined was not serious enough to cause a reduction in the growth. He said: "There was just no way that I would have taken that nursery stock and burned it .... I just don't believe that that was the proper thing to do." Mr. Miller was not unknowledgeable in these matters since he had managed the nursery for some time and had obtained a B.Sc. in Agricul ture (majoring in Ornamental Horticulture) from the University of Guelph. In cross-examination, he was asked whether, if he had seen the defoliation on the 15 trees, he would still have accepted those trees. He answered: "I still would have because there wasn't damage, seriously enough, to cause a reduction in the growth." He went on to explain that if the leaf damage on any of the trees amount ed to more than 50 per cent of the leaves, he would
have rejected those trees. However, he pointed out that the worst leaf damage he observed amounted to only about 20% of the leaves on a particular tree with the exception of one tree (a purple leaf beech) where approximately 40% of the leaves were affected.
In view of the evidence as summarized supra, I am unable to conclude that the appellant did not take valuable property lawfully held from the respondent. There is simply no evidence on the record from which it can be concluded that the stock destroyed was valueless. To the contrary, the evidence makes it clear that most, if not all of the nursery stock destroyed, was not infested or con taminated in any way. As noted supra, the evi dence of damaged stock relates only to 15 trees out of a total stock of 362 trees and shrubs. The letter to the respondent from the Canadian Forestry Service Laboratory of Environment Canada, wherein that service identified the sample of larvae submitted by the respondent as being gypsy moth larvae referred only to the Bald Hill stock since that stock was the source of the sample submitted. Likewise, there was no evidence from which it could reasonably be concluded that there was any likelihood that further infestation or contamina tion would result. For these reasons, I cannot agree on this record, that the nursery stock destroyed by the appellant was not valuable property or was otherwise harmful. Since, in my view, the evidence falls far short of establishing that the respondent's shipment should not have entered Canada due to gypsy moth infestation, it follows that it does not establish that the respondent was illegally holding its property at the time of taking. The inferences and conclusions which I have drawn from the uncontradicted evidence herein do not conflict with any of the findings of fact of the learned Trial Judge. In this regard, the Trial Judge only found: (i) that the inspectors carried out their duty as they were required to do under the Act and Regu lations; and (ii) that they discussed the matter
with officials of the respondent, and did not agree with the respondent's proposed solution because they considered the larvae to be a dangerous pest requiring immediate destruction. Since the Trial Judge disposed of the proceedings under the Charter without any consideration of the Manito- ba Fisheries principle, it was not necessary for him to consider whether respondent's property had any value at the time of its destruction and, conse quently, he was not called upon to make specific findings of fact relative to this issue. Similarly, he was not required, on his view of the matter, to draw the inferences which, I have drawn and which, in my opinion, flow necessarily from the evidence adduced.
The second submission of the appellant concern ing the applicability of the Manitoba Fisheries principle relates to the scheme of the Plant Quar antine Act and the Regulations promulgated there- under. Appellant's counsel observes that subsec tion 3(2) of the Act empowers the Minister to order the payment of compensation in respect of plants destroyed pursuant to the Regulations. Sub section 9(4) of the Act, inter alia, authorizes an inspector to order the destruction of plants when he believes, on reasonable grounds, that such plants constitute a hazard because they could be infested with any pests. Paragraph (5)(b) of sec tion 9 of the Act empowers the Governor in Coun cil to make regulations "respecting the destruction or disposition of any plant or other matter forfeit ed or confiscated under this section and the pay ment of any reasonable costs incidental to such destruction or disposition." Pursuant to subsection 9(5) of the Act, regulations [Plant Quarantine Regulations] were passed on November 19, 1976 (SOR/76-763 [consolidated in C.R.C., c. 1273]). Regulation 7(6) provides: "The cost of treating or destroying any plant or other matter or returning it to its place of origin pursuant to this section and all related costs shall be paid by the importer of the plant or other matter." Counsel also refers to
section 16 of the same Regulations which empow ers the Minister to award compensation in an amount not exceeding 80% of the value of plants destroyed in circumstances where potato plants are infested with potato cyst nematode or potato wart. It is, therefore, the submission of counsel based on the above quoted sections of the Act and Regula tions, that the statutory scheme contemplates that in some situations only will compensation be paid and in others the owner of infested plants may have to pay for their destruction and will not be compensated. On this basis he submits that no right to compensation can be implied from the provisions of the Plant Quarantine Act and Regu lations. I am unable to agree with this submission. I find relevant the judgment of Lord Atkinson in the case of Central Control Board (Liquor Traffic) v. Cannon Brewery Co., [1919] A.C. 744 (H.L.). In that case the Central Control Board (Liquor Traffic) acquired compulsorily certain licensed premises pursuant to the powers conferred on them by the Defence of the Realm (Amendment) (No. 3) Act, 1915 [5 & 6 Geo. 5, c. 42] and the Defence of the Realm (Liquor Control) Regulations, 1915. The House of Lords decided that the owner's claim to compensation was not limited to compen sation granted to him as a matter of grace but that he was entitled to claim compensation as of right under the Lands Clauses Consolidation Act, 1845 [8 & 9 Viet., c. 18]. At page 752, Lord Atkinson said:
It was not suggested that the above-mentioned Regulations were not intra vires; nor was it contended that the principle recognized as a canon of construction of statutes by many authorities, such as Attorney-General v. Horner ((1884), 14 Q.B.D. 245, 257), Commissioner of Public Works (Cape Colony) v. Logan ([1903] A.C. 355, 363), Western Counties Ry. 'Co. y. Windsor and Annapolis Ry. Co. ((1882), 7 App. Cas. 178, 188), did not apply to the body of legislation under which the board purported to act. That canon is this: that an intention to take away the property of a subject without givin to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms. I used the words "legal right to compen sation" advisedly, as I think these authorities establish that, in the absence of unequivocal language confining the compensa tion payable to the subject to a sum given ex gratia, it cannot be so confined. I do not think that the Attorney-General really contested this, nor, as I understood him, did he contest the
principle that where the statute authorizing the taking away of, or causing damage to, the subject's property, either does not provide a special tribunal to assess the amount of the compen sation the subject is to receive, or only provides a tribunal which has become non-existent, the subject is entitled to have that amount assessed in the High Court of Justice: Bentley v. Manchester, Sheffield, and Lincolnshire Ry. Co. ([1891] 3 Ch. 222). (Emphasis added).
In that case, it was submitted that the scheme of the statute and Regulations provided for compul sory taking without paying compensation therefor beyond such sum as might by an act of grace be awarded to the owner. In the case at bar, the appellant's counsel makes a similar argument. He suggests that, since the Act and Regulations pro vide in some cases of destruction, for compensation and not in others, that no general right to compen sation is to be implied. That, however, is not the principle enunciated by Lord Atkinson supra. The canon of statutory construction to which he referred makes it clear that "an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the legislature unless that intention is expressed in unequivocal terms." It is not a question of implying a general right to compensation. The legal right to compensation exists unless a clear and unequivocal contrary intention is expressed in the relevant legislation. I can find no such clear and unequivocal contrary intention in the Plant Quarantine Act or Regula tions. Accordingly, and for the above reasons, I reject the submissions of appellant's counsel as to the non applicability of the Manitoba Fisheries decision to the instant case. It follows, in my view, that the respondent is entitled to compensation for the value of the goods destroyed. With respect to the Manitoba Fisheries decision, I would observe that the Supreme Court of Canada has recently affirmed the principle of that decision in the case of R. in right of the Province of British Columbia v. Tener et al., [1985] 1 S.C.R. 533, at pages 563 and 564, per Estey J. and per Wilson J. at page 551.
Insofar as the value of the goods destroyed is concerned, I referred earlier to the evidence of Donald Miller that the cost of the shipment was $8,429.19 Canadian. He also testified that the normal mark-up at the relevant time was approxi mately 50%. On this basis, he quantified the value of the property destroyed at $13,073.50. This figure was accepted by the Trial Judge. The appel lant adduced no evidence to contradict or vary this figure. Accordingly, I think the Trial Judge was right to accept the figure given by Mr. Miller and, in the circumstances, there is no basis to justify this Court in changing that figure.
A perusal of the transcript of closing argument by counsel at the trial reveals that both counsel discussed the Manitoba Fisheries case and made submissions to the Trial Judge with respect to the applicability of the rationale of that case to the instant case. The Trial Judge made no reference in his reasons to that decision nor did he invoke the principle established by that case in reaching his conclusion. In this Court, the Manitoba Fisheries principle was discussed by each counsel, both in their memoranda and in oral argument. Although no question as to the sufficiency of the respon dent's pleadings was raised in argument by counsel for the appellant, I wish to comment briefly on this matter since the basis upon which I have conclud ed that the respondent is entitled to succeed was not specifically pleaded. Rule 408(1) [Federal Court Rules, C.R.C., c. 663] reads:
Rule 408. (1) Every pleading must contain a precise statement of the material facts on which the party pleading relies.
Rule 412(1) reads:
Rule 412. (1) A party may by his pleading raise any point of law.
Accordingly, it seems clear that a pleading must contain all of the material facts required to sup port a claim but that conclusions of law do not have to be pleaded although they may be included. Thus, the initial question to be asked is whether all the material facts necessary to the establishment of a claim under the Manitoba Fisheries principle
have been pleaded in the statement of claim. In my view, the following facts would have to be pleaded:
(a) property, in the respondent;
(b) a taking of that property;
(c) no compensation for the taking; and
(d) authority for that taking.
A perusal of this statement of claim satisfies me that all of the above essential facts have been pleaded. Paragraphs 7 and 8 claim property rights and allege a taking of those property rights. Para graph 13, by clear implication, alleges that no compensation was paid while paragraphs 4 and 9 plead the facts relating to authority for the taking. For these reasons I conclude that the requisite allegations have been pleaded sufficiently. How ever, that may not be the end of the matter in a case such as this where the respondent has, pursu ant to Rule 412(1), raised points of law. The respondent has drawn three conclusions of law in this statement of claim: trespass (paragraph 8); breach of the Charter (paragraph 10); and breach of the Canadian Bill of Rights (paragraph 11). As noted supra, the respondent's counsel did refer to the Manitoba Fisheries case in his closing argu ment at trial. However, a perusal of pages 539-543 of Vol. II of the transcript persuades me that he was relying on that case in the context of his submissions on various provisions of the Charter. In these reasons I have concluded that the respondent is entitled to compensation on the basis of the principle established in Manitoba Fisheries separate and apart from any Charter consider ations. Therefore, the question arises as to whether or not the appellant was given the opportunity to address and did address the Manitoba Fisheries principle outside of any impact it may have had on the Charter issues raised by the respondent. This question is clearly answered by a perusal of the argument at trial made by counsel for the appel lant. At Vol. IV, page 580, counsel for the appel lant said:
It's my submission, My Lord, that the fundamental issue here in this case, the fundamental issue once we get by the facts in section 9, and my friend touched on it when he dealt with it. It's not search and seizure under the Charter of Rights. It's not Section 1(a) of the Bill of Rights. It's the common law pre sumption of compensation which my friend talked about ....
Thereafter, at pages 581 to 583, counsel dealt with the Manitoba Fisheries case, referred to the scheme of the Act and Regulations and made substantially the same argument concerning the non applicability of Manitoba Fisheries as was presented to us. Therefore, I am satisfied that the Manitoba Fisheries principle, or "the common law presumption of compensation" as counsel charac terized it was addressed by counsel both at the trial and on the appeal. In these circumstances, and keeping in mind that under our Rules it is not mandatory to plead conclusions of law, I have concluded that the pleadings herein are not defec tive. Support for this view may be found in the comments of Scrutton L.J. in the case of Lever Brothers, Ltd. v. Bell, [1931] 1 K.B. 557 (C.A.), at pages 582-583 where he said:
In my opinion the practice of the Courts has been to consider and deal with the legal result of pleaded facts, though the particular legal result alleged is not stated in the pleadings, except in cases where to ascertain the validity of the legal result claimed would require the investigation of new and disputed facts which have not been investigated at the trial.
This view is further supported by Lord Denning's judgment in In re Vandervell's Trusts (No. 2), [1974] Ch. 269 (C.A.), at pages 321-322 where he said:
It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit.
For all of the above reasons, I have concluded that the respondent is entitled to receive as compensa tion for the value of the goods destroyed the sum
of $13,073.50. The Trial Judge gave the respon dent judgment for the sum of $13,439.02. To the value of the goods destroyed in the sum of $13,073.50 he added the following items: costs of renting a sprayer $108; brokers' fees $165; and long distance telephone calls $92.52. In my view, these items can be said to be reasonably incidental to the value of the respondent's property and, therefore, I would not disturb the quantum of compensation awarded by the Trial Judge.
The only other issue to be disposed of is the matter of the respondent's cross appeal in which it asks that general damages and exemplary damages be awarded in addition to the special damages awarded by the Trial Judge. I would repeat my conclusion that the respondent is entitled to com pensation for goods destroyed. In such a situation, the quantum is determined by a valuation of the goods destroyed and not by any damages that might have been suffered. However, assuming without deciding that the respondent has a valid claim for damages either under the Charter or the Bill of Rights, I do not think this is a case for either general or exemplary damages in view of the following finding of fact by the Trial Judge (at pages 75 and 76): "I am fully satisfied that the inspectors carried out their duty as they were obligated to do under the Plant Quarantine Act and Regulations."'
For all of the above reasons I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment rendered in English by
RYAN J.: This is an appeal from a judgment of the Trial Division which awarded compensation to the respondent, Bertram S. Miller Ltd. ("the importer"), on the ground that the importer had
3 Compare: Karas et al. v. Rowlett, [1944] S.C.R. 1, at p. 10 on the question of general damages.
On the question of exemplary damages see: Dhalla v. Jodrey (1985), 16 D.L.R. (4th) 732 (N.S.C.A.), at p. 739.
been denied its right guaranteed by section 8 of the Canadian Charter of Rights and Freedoms ("the Charter") to be secure against unreasonable search and seizure.
The importer had brought into Canada orna mental trees and shrubs which it had purchased from three nurseries in the United States, one in Rhode Island, the other two in Massachusetts. These trees and shrubs were confiscated and destroyed by inspectors of the Department of Agriculture acting under subsection 9(4) of the Plant Quarantine Act ("the Act"). Subsection 9(4) authorizes an inspector to confiscate plants or other matter and to order their destruction where he believes on reasonable grounds that the plants constitute a hazard because they are or could be infested with a pest.
The Trial Judge was apparently of the view that the decision to confiscate and to destroy the trees and shrubs had been made following a "search" carried out by inspectors of the Department of Agriculture pursuant to paragraph 6(1)(a) of the Act, which reads:
6. (1) An inspector may at any reasonable time
(a) enter any place or premises in which he reasonably believes there is any pest or plant or other matter to which this Act applies, and may open any container or package found therein or examine anything found therein that he has reason to believe contains any such pest or plant or other matter, and take samples thereof ....
The inspectors had made the search without having obtained a warrant. The Trial Judge was of the view that the powers conferred by paragraph 6(1)(a) to search without warrant are not neces sarily unreasonable. He stated that there might be circumstances of emergency in which it would not be feasible to obtain a warrant. He was of opinion, however, that the paragraph was inoperative to the extent of its inconsistency with section 8 of the Charter. He found that there was inconsistency in the present case because it had not been estab lished that obtaining a warrant was not feasible.
The appellant, the Crown, has appealed on the ground that the Trial Judge erred in finding that
there was a warrantless search which, therefore, constituted an unreasonable search and seizure under section 8 of the Charter. This is the essential issue in this appeal.
Another issue may arise, however, if it should be determined that the importer's rights under section 8 of the Charter were not denied. The issue is whether the importer would nonetheless be entitled to compensation on the basis of the principle in Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101, the principle that a person whose property is taken by the Crown in the exercise of a statutory power is entitled to compensation unless the statute clearly indicates a contrary intention.
Mr. Justice Heald has reviewed the facts of the case in his reasons. I will emphasize only such of these facts as are necessary to my reasons. I may occasionally refer to certain facts not mentioned in his review.
The importer brought the three lots of trees and shrubs into Canada in one shipment. It has obtained a permit to import each of the lots. The permits appear to have been issued under section 4 of the Plant Quarantine Regulations ("the Regulations").
Subsection 5(1) of the Regulations provides:
5. (1) Subject to the conditions set out in sections 6, 7 and 9 any plant or other matter that is likely to be infested with a pest may be admitted into Canada if
(a) its admission into Canada is authorized by a permit; and
(b) it is accompanied by a health certificate.
The trees and shrubs were accompanied by appro priate health certificates.
An "Authority to Release" form was issued for each of the three lots. The forms indicated that the shipment would be inspected at destination, which was to be the importer's address in St. Martins, New Brunswick. The forms were signed by Mr. Holm, a Department of Agriculture inspector in Saint John. As Mr. Justice Heald states, the importer agreed to this procedure. I take it that the purpose of the authority to release was to allow
the shipment to pass through the port of entry without examination.
The three lots were delivered in St. Martins on Wednesday evening, May 19, 1982. I presume the lots were admitted to Canada under section 5 of the Regulations. Their admission was thus subject to the conditions set out in section 7 of the Regula tions (as am. by SOR/80-246). Section 7 provides in part:
7. (1) Any plant or other matter that is admitted into Canada pursuant to section 5 shall be examined by an inspector to determine whether it is infested, at the port of entry through which it is admitted into Canada or at a place inside Canada specified in writing by an inspector.
(1.1) Any plant or other matter that is admitted into Canada pursuant to section 5 shall be admitted into Canada only at one of the following ports of entry:
(h) Saint John, New Brunswick;
(2) Where, pursuant to subsection (1), an inspector has specified in writing a place at which any plant or other matter is to be examined, no person shall
(a) move the plant or other matter to any place except the place specified; or
(b) open any container or unpack any package of that plant or other matter, without the consent of the inspector.
(3) Where, an inspector inspects any plant or other matter pursuant to subsection (1) and determines that treatment is necessary to ensure that it is not infested, the plant or other matter shall be treated as required by the inspector and again inspected.
(4) Where, upon any inspection of plant or other matter referred to in subsection (1) or (3), it appears to an inspector that the plant or other matter is not infested, he shall issue to the importer of the plant or other matter a certificate stating that the plant or other matter was inspected and apparently was not infested.
(5) Where it appears to an inspector that any plant or other matter inspected pursuant to subsection (1) or (3) cannot be treated to the extent necessary to ensure that it is not infested, the plant or other matter shall be returned to its place of origin or destroyed.
(6) The cost of treating or destroying any plant or other matter or returning it to its place of origin pursuant to this section and all related costs shall be paid by the importer of the plant or other matter.
On Thursday afternoon, May 20, Mr. Holm, the inspector who had signed the authority to release forms, inspected the shipment. I assume that this inspection was the examination by an inspector required by subsection 7(1) of the Regulations. In
the course of his examination, Mr. Holm ordered the importer to spray with an insecticide all plants from the Bald Hill Nurseries, the nursery located in Rhode Island. I take it that this order was made under subsection 7(3) of the Regulations. Mr. Holm also collected samples of larvae he found in the Bald Hill Nurseries lot and took them to Saint John for further examination. He did this because he was not sure about the identity of the larvae. These samples, together with samples taken from another nursery, Maritime Sod, in Saint John, were taken by Mr. Weiler, Mr. Holm's superior in Saint John, to Fredericton for identification.
It is at this point that I differ in my review of the evidence from that of Mr. Justice Heald. Mr. Justice Heald is of the view that there is no satisfactory evidence to establish that any of the larvae brought into Fredericton and later identi fied as gypsy moths were the same larvae that were taken by Mr. Holm from the importer's nursery in St. Martins. With respect, however, I read the evidence rather differently.
Mr. Weiler brought two vials or containers to Fredericton; one contained larvae from the import er's nursery, the other from a nursery in Saint John. The evidence does not establish, it was said, that the larvae contained in each vial were sepa rately examined and identified as gypsy moth larvae. If larvae from one only of the vials were examined, one cannot be certain on the evidence that those larvae were from the importer's nursery. If the larvae from the two vials were mixed before examination, once cannot say for certain whether any particular larva, identified as gypsy moth, came from the importer's nursery. Unfortunately, it is unclear from the evidence whether the larvae, when immersed in alcohol, as all were before they were examined, were replaced in the same vial or whether they were mixed.
Dr. Embree, who among others examined the larvae, was a qualified expert and the Program Director of Technical Services of the Canadian Forestry Services. He identified the larvae which were submitted to him for identification as gypsy moth larvae. He examined two of the larvae under a microscope and identified them as gypsy moth larvae. If this were all he did, the identification would clearly be suspect. But he examined other larvae as well, using an identification key classifi cation system. All the larvae he examined were, he testified, gypsy moth larvae. He was very clear under cross-examination that it was not necessary to examine each larva under a microscope in order to make a reliable identification. In these circum stances, it seems to me more likely than not that at least some of the larvae, identified by him as gypsy moths, came from the importer's nursery at St. Martins. It seems to me that, as a scientist called on to assist in identifying all of the larvae submit ted to him for his expert opinion, he would not have identified them as such unless he was reason ably certain that all of the specimens were gypsy moth larvae.
Even apart from the expert evidence of Dr. Embree, there was separate evidence that the larvae found in the Bald Hill lot were gypsy moth larvae. Mr. Donald Miller himself, who basically ran the nursery business, delivered several speci mens to provincial authorities for identification, and these specimens were identified as gypsy moths. Indeed, the respondent conceded in his memorandum of fact and law that the larvae found on the Bald Hill lot were gypsy moth larvae.
I now continue with my own review of the evidence. The larvae were also examined in Fred- ericton by Dr. L. P. Magasi, the Head of the Forest Insect and Disease Survey for the Mari- times Forestry Centre in Fredericton. After the larvae had been identified as gypsy moth larvae, Dr. Magasi prepared a memorandum which con tained a recommendation for destruction by burn ing. This memorandum was shown to Mr. Weiler on Friday, May 21, 1982. Later that Friday after-
noon Mr. Weiler, Wayne Parker and Andrew Watt consulted with one another, apparently by telephone, and decided, based at least in part on the memorandum, that the trees and shrubs should be destroyed. Mr. Parker's office was in Frederic- ton. He was the District Manager for New Bruns- wick of the Agricultural Inspection Directorate of the Department of Agriculture. Mr. Watt was the Program Manager for Plant Health and Plant Products. His office was in Moncton. Mr. Parker and Mr. Watt reported to a common superior. Mr. Weiler, Mr. Parker and Mr. Watt were themselves inspectors.
On Friday evening, May 21, Mr. Weiler, who had returned to Saint John, and Mr. Holm went to St. Martins. Mr. Holm placed a detention tag on one of the trees intending to detain the entire shipment. Mr. Holm and Mr. Weiler saw Mr. Bertram Miller, who was president of the import er, and his son Donald Miller, who was vice-president.
Mr. Holm signed three documents headed "Notice of Refused Entry", one for each of the lots he had examined pursuant to section 7 of the Regulations. Each of these notices was directed to the importer and contained these printed words:
In accordance with the Plant Quarantine Act and Regulations you are advised that the plants or related matter described below are refused entry into Canada and must be returned to origin or destroyed under the supervision of an inspector.
Each notice described the lot in question, and gave " gypsy moth infestation" as the reason for refusal. These notices were given to the Millers.
Mr. Holm also signed a document headed "Notice of Detention". Again the notice was directed to the importer. It contained these printed words:
By authority vested in the "Plant Quarantine Act" we wish to advise that the contents of the consignment indicated below has been placed under detention for action or treatment as follows.
Description of the plant or other matter, location, reason for seizure.
The description of the plant or other matter seized appearing on the notice of detention in respect of the Bald Hill lot reads:
All plants from Bald Hill Nurseries Exter R.I. covered by Phytosanitary certificate 0079 on the property of Bertram S. Miller St. Martins to be destroyed on location and surrounding area sprayed with an insecticide.
These notices were then also handed to the Millers.
The May 21 weekend was a long weekend. The importer did not destroy the plants and shrubs. On Tuesday, May 25, Mr. Watt went to Saint John. He prepared and signed a letter. The letter was dated May 25, 1982 and it was addressed to Bertram S. Miller Ltd. The letter stated in part:
This letter is to inform you that the truck load of Nursery Stock imported by you on May 19, 1982, from the following Nurseries, was found to be infested with Gypsy Moth Larvae (Lymantria dispar).
The lots were then identified. The letter continued:
The above mentioned Nursery stock must be burned, and the surrounding areas sprayed. The burning and spraying will be conducted by the New Brunswick Department of Natural Resources personnel under the auspices of the Agriculture Canada Plant Quarantine Act and Regulations.
The burning and spraying is being conducted under Agriculture Canada's Plant Quarantine Act Sect. 9(4), the Plant Quaran tine Regulations sections 7, 14, 15, 21, 22, 25 (1) to (3), and the Emergency Plant Infestation Regulations Section 2. Copies of these sections are enclosed.
Mr. Watt and Mr. Parker then took the letter to St. Martins. Mr. Watt personally served the letter on the importer. The trees and shrubs were burned during the afternoon of May 25 by servants of the provincial Forestry Department who were acting as agents for the federal Department of Agricul ture.
I return to the notices that were signed by Mr. Holm and which were served on Friday evening, May 21. Mr. Holm was, or course, the inspector who had performed the inspection pursuant to section 7 of the Regulations. When Mr. Holm delivered the Notice of Refused Entry to the importer, the inspection under section 7, the inspection to which the importer had consented,
was in effect completed. The Millers clearly did not consent to the order of destruction which was served at the same time. They insisted that they be permitted to return the trees and shrubs to their place of origin. The very Notice of Refused Entry form appeared to indicate to them that they had such an option.
As I read the record, Mr. Holm did not carry out his inspection of the trees and shrubs pursuant to paragraph 6(1)(a) of the Act. He proceeded under section 7 of the Regulations. I see nothing unreasonable in his inspection or "search". He inspected with the importer's consent. Even had the importer not consented, the inspection was a routine inspection carried out in connection with the importation into Canada of the ornamental trees and shrubs. It was purely administrative in nature raising in the particular circumstances no unreasonable "search" issue.
The real issue raised by this case, in so far as section 8 of the Charter is concerned, is whether what appears to have been a confiscation and destruction of the trees and shrubs under subsec tion 9(4) of the Act constituted an unreasonable seizure.
Section 8 of the Charter reads:
8. Everyone has the right to be secure against unreasonable search or seizure.
The section guarantees against both unreason able search and against unreasonable seizure.
It seems clear to me that subsection 9(4) of the Act is the authority under which the inspectors ordered the destruction of the trees and shrubs.
Subsections 9(4) and 9(5) of the Act read in part:
9....
(4) Whenever an inspector believes on reasonable grounds that any plant or other matter constitutes a hazard because it is or could be infested with any pest or constitutes a biological obstacle to the control of any pest, he may confiscate such plant or other matter and may order its destruction or disposition forthwith.
(5) The Governor in Council may make regulations
(b) respecting the destruction or disposition of any plant or other matter . .. confiscated under this section and the payment of any reasonable costs incidental to such destruc tion or disposition.
Section 22 of the Regulations appears to have been enacted pursuant to paragraph 9(5)(b) of the Act. Section 22 reads in part:
22. Any plant or other matter ... confiscated pursuant to subsection 9(4) ... may be destroyed or disposed of in such manner as the Minister may direct and the owner shall pay, all reasonable costs incidental to such destruction or disposition.
As I read subsection 9(4), it authorizes an inspector to confiscate a plant or other matter and to order its destruction or disposition forthwith whenever he believes on reasonable grounds that such plant or other matter constitutes a hazard because it is or could be infested with a pest. The subsection, as I read it, does not give an inspector a choice between on the one hand confiscating and, on the other, ordering destruction or other disposi tion. As I construe the subsection, he may order destruction or other disposition of the plant or other matter only if he confiscates it. The author ity must, of course, be exercised by an inspector. I take it, however, that the authority could be exer cised by more than one inspector provided they believed on reasonable grounds that a plant con stituted a hazard because it is or could be infested with a pest: see subsection 26(7) of the Interpreta tion Act [R.S.C. 1970, c. I-23].
I would further observe that subsection 9(4) confers on an inspector authority to confiscate a plant or other matter and to order its destruction or other disposition by the person from whom it is confiscated. But that is all it authorizes an inspec tor to do. It does not authorize the inspector either himself or through his agents to destroy or other wise dispose of confiscated matter. Section 22 of the Regulations, however, does in effect vest this power of destruction in the Minister in that he may direct the manner in which a plant or other matter, confiscated under subsection 9(4), should be destroyed or otherwise disposed of. I would construe this authority broadly. I would interpret it as being susceptible of authorizing not only the
precise manner of destruction, but also as being wide enough to authorize the actual destruction of the plants by departmental officials where the owner of the plants has failed to execute the. order issued under subsection 9(4).
The authority conferred on the Minister by sec tion 22 of the Regulations, so far as it relates to destruction and disposition of confiscated plants and other materials, is a power supplemental to the power conferred on inspectors by subsection 9(4) of the Act. Section 22 of the Regulations does not empower the Minister to confiscate. That power is to be exercised by an inspector under subsection 9(4) of the Act. But the authority vested in the Minister by section 22 to have the destruction carried out by the Department itself, while important, is nevertheless not, in my opinion, of such a nature as to require the Minister to exercise it personally.
I would construe section 22 of the Regulations as conferring on the Minister an authority which he could delegate or even an authority which senior officials of the Department might exercise absent express delegation if delegation were "con- veyed generally and unofficially by the officer's hierarchical superiors in accordance with depart mental practice." See De Smith, Judicial Review of Administrative Action (4th ed.), at page 307.
I would quote this passage from the judgment of Mr. Justice Dickson (as he then was) in R. v. Harrison, [1977] 1 S.C.R. 238, at pages 245 and 246:
In my opinion there is implied authority in the Attorney General to delegate the power to instruct, in s. 605(1). I do not think that s. 605(1) requires the Attorney General personally to appeal or personally to instruct counsel to appeal in every case. Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally (delegatus non pot est delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme. A power to delegate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in "Delegatus Non Potest Delegare", (1943), 21 Can. Bar Rev. 257 at p. 264:
... in their application of the maxim delegates non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construc tion of the words of the statute which would require them to read in the word "personally" and to adopt such a construc tion as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the words "or any person authorized by it".
See also S. A. DeSmith, Judicial Review of Administrative Action, 3d ed., at p. 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his depart ment: Carlton. Ltd. v. Commissioner of Works, ([1943] 2 All E.R. 560 (C.A.)). The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to adminis trative chaos and inefficiency. It is true that in the present case there is no evidence that the Attorney General of British Columbia personally instructed Mr. McDiarmid to act on his behalf in appealing judgments or verdicts of acquittal of trial courts but it is reasonable to assume the "Director, Criminal Law" of the Province would have that authority to instruct.
Mr. Parker testified, with reference to section 22 of the Regulations, that it was his understand ing that "it's delegated through the system". And Mr. Watt testified that, after making the decision to destroy by burning, he consulted and had the approval of a senior official in Ottawa, Mr. Bruce Hopper, who was then Acting Director of the Plant Health Division of the Department. Mr. Watt was questioned in cross-examination about section 22 of the Regulations. He was asked whether the section did not imply that he had to refer a decision to destroy to the "highest author ity in the Department". Mr. Watt replied that that was why in situations such as this the matter is referred to the Director of the Division.
The only question, as I see it, is whether there is evidence to support a conclusion that when Mr.
Bruce Hopper approved Mr. Watt's proposal to burn the importer's trees and shrubs, he exercised ministerial authority under section 22 of the Regulations.
There is some conflict on this point between Mr. Parker's evidence and that of Mr. Watt. Both agree that the authority under section 22 of the Regulations is delegated, but there appears to be a difference over how extensive the delegation is. Mr. Watt's evidence is, I think, more likely to represent the true situation, and what is more, it does indicate, quite clearly, that it is a practice followed in situations arising under section 22 to refer such a matter to the Director of the Plant Health Division. I need not consider what the situation might be if the power had been delegated to a person lower in rank than the Director of a Division. The question is a difficult one, but in the circumstances I would treat Mr. Hopper's approv al as complying with section 22 of the Regulations. In my view Mr. Watt would not have proceeded with the burn had Mr. Hopper not given his approval.
I have had some concern over the question whether there was a confiscation of the trees and shrubs as well as an order for their destruction. It seems to me, however, that it is quite possible that Mr. Holm's tagging of the trees on Friday evening, May 21, could have been a confiscation, having in mind that his order to destroy was about to be issued. Also the order he issued itself speaks of "seizure". But at any rate, the very seizure of the trees and shrubs on Tuesday afternoon and their destruction by fire would, in my view, have oper ated as a confiscation even if Mr. Holm's previous tagging did not.
What was involved in this case was, of course, more than a mere seizure: it was a confiscation and destruction. Mr. Justice Hugessen addresses the question whether section 8 of the Charter reaches the confiscation and destruction provisions of subsection 9(4) of the Act. I, too, would prefer to leave that question to another day. I assume, as does he, that, for purposes of this case, the confis cation and destruction of the importer's trees and
shrubs did constitute a seizure within the meaning of that term as used in section 8 of the Charter.
The power to confiscate is a very considerable power. This is particularly so where the power is not conditioned on the fact of infestation, but on a belief on reasonable (but possibly mistaken) grounds that the plants are a hazard.
Was the seizure unreasonable within the mean ing of that term as used in section 8 of the Charter?
I would first observe that the seizure involved in this case was not a "search and seizure" in a criminal law context. It was a seizure effected in the course of administering the Plant Quarantine Act. It was a step in an administrative process. It is, I think, important to have this distinction in mind. I quote from Mr. Justice Martin in R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), at page 112:
In my view ... a clear distinction must be drawn between a general power to enter private premises without a warrant to search for contraband or evidence of crime and a power con ferred on designated officials to enter premises for inspection and audit purposes and to seize records, samples or products in relation to businesses and activities subject to government regulation.
It would, as I see it, be undesirable to introduce into our administrative law system a relatively inflexible warrant requirement. I would hope that the "unreasonable" standard referred to in section 8 of the Charter should be the effective guide. This would leave room for developing more flexible and imaginative, but nonetheless satisfactory, safe guards in the administrative area through legisla tion and regulations: see, for example Donovan v. Dewey, 452 U.S. 594 (1981); and see, generally, Reid and Young, "Administrative Search and Sei zure under the Charter", (1985) 10 Queen's Law Journal 392.
In my view, the interests protected by the guar antee of security against unreasonable search on the one hand and against unreasonable seizure on the other are not identical, though often they may overlap: a seizure is usually made in the course of a search. Unreasonable search impairs one's right to privacy; unreasonable seizure impairs one's right to undisturbed possession. In this case, once the "search" was over, the importer's claim to privacy in respect of the trees and shrubs was very limited, if it existed at all. The trees and shrubs in question had been examined, and remained in plain view in the open space where the truck had been unloaded.
The importer, of course, owned the trees and shrubs. The importer's interest in the trees and shrubs immediately before their confiscation was, for relevant purposes, purely proprietory: its inter est was in retaining undisturbed possession of them, possession free from seizure. There was, however, a strong conflicting public interest. Once the inspectors had reasonable cause to believe that the trees and shrubs were infested with gypsy moths, a dangerous pest, there was a powerful public interest in safeguarding New Brunswick forests against what might well have been a very damaging infestation. The Trial Judge said [at page 76]:
In the inspectors' views, further spraying would not destroy the larvae and returning the infested trees back to the United States could cause further infestation. They considered the larvae to be a dangerous pest that had to be destroyed at once. The inspectors felt that they had reasonable grounds to believe that the trees were infested with a pest .... [Underlining added.]
In his reasons for judgment the Trial Judge relies on the judgment of Mr. Justice Dickson (as he then was) in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145. Subsection 10(1) of the Combines Investigation Act [R.S.C. 1970, c. C-23] authorized the Director of Investigation and Research of the Combines Investigation Branch or his representative to enter, in an inquiry under the Act, any premises in which the Director believed there might be evidence relevant to the matters being inquired into. Subsection 10(3) of the Act
required the Director, before exercising the power conferred by subsection (1) to produce a certifi cate from a member of the Restrictive Trade Practices Commission, which might be granted on the ex parte application of the Director, authoriz ing the exercise of such power. The Supreme Court held that subsections 10(1) and 10(3) were inconsistent with section 8 of the Charter because they failed to specify an appropriate standard for the issuance of warrants and failed to designate an impartial arbiter to issue them.
Of section 8 of the Charter Mr. Justice Dickson [as he then was] said at page 158: "It guarantees a broad and general right to be secure from unrea sonable search and seizure." He said at page 157:
Since the proper approach to the interpretation of the Chart er of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to protect.
Historically, the common law protections with regard to governmental searches and seizures were based on the right to enjoy property and were linked to the law of trespass. It was on this basis that in the great case of Entick v. Carrington (1765), 19 St. Tr. 1029, 1 Wils. K.B. 275, the Court refused to countenance a search purportedly authorized by the executive, to discover evidence that might link the plaintiff to certain seditious libels. Lord Camden prefaced his discussion of the rights in question by saying, at p. 1066 [19 St. Tr. 1029]:
The great end, for which men entered into society, was to preserve their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.
He said at pages 158 and 159:
In my view the interests protected by s. 8 are of a wider ambit than those enunciated in Entick v. Carrington. Section 8 is an entrenched constitutional provision. It is not therefore vulnerable to encroachment by legislative enactments in the same way as common law protections. There is, further, noth ing in the language of the section to restrict it to the protection of property or to associate it with the law of trespass. It guarantees a broad and general right to be secure from unrea sonable search and seizure.
The Fourth Amendment of the United States Constitution, also guarantees a broad right. It provides:
The right of the people to be secure in their persons, houses papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upor probable cause, supported by Oath or affirmation, and particu larly describing the place to be searched, and the persons of things to be seized.
Construing this provision in Katz v. United States, 389 U.S. 347 (1967), Stewart J. delivering the majority opinion of the United States Supreme Court declared at p. 351 that "the Fourth Amendment protects people, not places". Justice Stew- art rejected any necessary connection between that Amendment and the notion of trespass. With respect, I believe this approach is equally appropriate in construing the protections in s. 8 of the Charter of Rights and Freedoms.
In Katz, Stewart J. discussed the notion of a right to privacy, which he described at p. 350 as "his right to be let alone by other people". Although Stewart J. was careful not to identify the Fourth Amendment exclusively with the protection of this right, nor to see the Amendment as the only provision in the Bill of Rights relevant to its interpretation, it is clear that this notion played a prominent role in his construction of the nature and the limits of the American constitutional protection against unreasonable search and seizure.
He also said at pages 159 and 160:
Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security from unreasonable search and sei zure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or posi tively as an entitlement to a "reasonable" expectation of priva cy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
Mr. Justice Dickson then considered the time at which an assessment must be made, an assessment of whether "in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement." [Empha- sis added.] Mr. Justice Dickson said at pages 160 and 161:
If the issue to be resolved in assessing the constitutionality of searches under s. 10 were in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it
would be appropriate to determine the balance of the compet ing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.
A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. 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 autorization is a precondition for a valid search and seizure.
Here also, the decision in Katz, supra, is relevant. In United States v. Rabinowitz, 339 U.S. 56 (1950), the Supreme Court of the United States had held that a search without warrant was not ipso facto unreasonable. Seventeen years later, how ever, in Katz, Stewart J. concluded that a warrantless search was prima facie "unreasonable" under the Fourth Amendment. The terms of the Fourth Amendment are not identical to those of s. 8 and American decisions can be transplanted to the Canadian context only with the greatest caution. Nevertheless, I would in the present instance respectfully adopt Stewart J.'s formulation as equally applicable to the concept of "unreason- ableness" under s. 8, and would require the party seeking to justify a warrantless search to rebut this presumption of unreasonableness.
It is, I think, important, when reading these quotations, to bear in mind that Mr. Justice Dick- son was proceeding on the basis that the interest involved in Southam was the interest in privacy. Obviously, prior authorization was, then, of criti cal importance. An unlawful search would destroy the privacy interest merely by being conducted. The damage suffered would be beyond adequate remedy by way of damages. This would not neces sarily be so where the interference is with a prop erty right. Such an interference, if wrongful, might
well be adequately compensated by an award of damages.
Thus in Southam Mr. Justice Dickson very clearly held that privacy was an interest protected by section 8 of the Charter; he did not, however. rule out the possibility that the section might extend protection to interests other than privacy. As indicated earlier in these reasons, I am assum ing, for purposes of this appeal, that the confisca tion and destruction of the importer's trees and shrubs was a seizure within the meaning of that term as used in section 8 of the Charter, despite the fact that there was not only a taking of posses sion but a confiscation and destruction. The ques tion, as I see it, is whether a taking of possession by way of seizure could be a "seizure" within section 8 if it did not also constitute an "invasion of privacy".
It would seem to me that privacy is the most important interest safeguarded by section 8. I am of opinion, however, that it is not the only interest so protected. True, we have come a long way since Entick v. Carrington [(1765), 19 St. Tr. 1029; 2 Wils K.B. 275; 95 E.R. 807 (K.B.)], and there have been changes in the relative values of "prop- erty" and "person". It does not, however, follow that property is not a value protected in any way by section 8 of the Charter.
"Security of property" was deliberately omitted from section 7 of the Charter. Security of property is not, therefore, accorded the protection guaran teed by section 7 to security of the person. It is not a necessary consequence, however, that a particu lar aspect of a property owner's interest in his property may not be afforded Charter protection. It does appear to me that section 8, in its very terms, does afford protection to a particular inter est in property: the interest a person has in being secure against an unreasonable seizure of his prop erty. There may, of course, be questions about the meaning of "seizure" as the term is used in section 8 of the Charter and about the kind of property interests protected by the provision. The answers
to these questions may turn in large part on the long history of our judicial experience with "search and seizure". It will no doubt be wise to proceed case by case.
In this case we have eminently seizable goods and it is my view that, as I have indicated, for the purposes of this appeal the importer's trees and shrubs were in fact seized.
I turn to the question whether the seizure was unreasonable for the sole reason that it was con ducted without a warrant.
In the United States it has been held that administrative searches of private residences and even of private commercial premises are subject to Fourth Amendment protection, although in the case of private commercial premises there is a greater latitude in respect of warrantless searches; this is so because the expectation of privacy of the owner of commercial premises "differs significant ly from the sanctity accorded an individual's home": see Donovan v. Dewey, referred to above, at pages 598-599.
The proposition that administrative searches of residences and private commercial premises are subject to Fourth Amendment protection must, however, be considered with an important reserva tion in mind. In Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967) (in which it was held that the Fourth Amendment is applicable to an administrative search of a private home), Mr. Justice White said at page 539:
Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situation. See North Ameri- can Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (seizure of unwholesome food); Jacob- son v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory smallpox vaccination); Compagnie Française v. Board of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165
N.E. 498 (summary destruction of tubercular cattle). [Under- lining added.]
I take it that the situations indicated in this quotation are situations in which a warrantless seizure may be justified. It should be noted that at this point in the appeal I am no longer dealing with a search issue: the inspection, the "search", had been completed before the goods were seized.
Mr. Justice White did not seek to develop the nature or scope of the "emergency situation" to which he referred except to the extent that he mentioned examples of it. What I am about to say about the nature and scope of the "emergency situation" are thus my own reflections.
"Unwholesome food" poses a threat to public health, "tubercular cattle" to public health and to neighbouring herds. They give rise, as I see it, to "emergency situations", situations in which prompt action may be required. In such situations a warrant is not necessary for a "seizure" if such a seizure is authorized by statute and the terms of that statute are in themselves reasonable. The very language of subsection 9(4) of the Act is the language of emergency. The subsection speaks of "hazard", it speaks of "infestation by pests", and it speaks of "destruction or disposition forthwith". Such a situation constitutes an "emergency" in itself. And I am of opinion that in this case, as long as the standard set in subsection 9(4) is reasonable and the inspectors acted within that standard, they acted within an "emergency situa tion" and thus neither a warrant nor other authori zation from an impartial arbiter was a necessary precondition.
I would also note that the delay in executing the subsection 9(4) order over the long weekend did not detract from the "emergency situation". Indeed, given my interpretation of subsection 9(4), there was no delay in executing the order as the officials used the time to seek higher authority in
order to be able to act themselves pursuant to section 22 of the Regulations.
A government official who makes a warrantless seizure in such a situation may, however, later be sued or the government may be sued. In such an action the issues would be whether the terms of the Act provide a reasonable standard for a seizure and whether the official acted in accordance with those standards. Depending on the circumstances, the action might be for violation of a section 8 Charter right, or an action in tort.
Once it is decided, as I have decided, that the warrantless seizure as such did not offend section 8 of the Charter, the only issues left to be dealt with are: whether the terms of subsection 9(4) in them selves are reasonable, and whether the inspectors acted in accordance with the authority vested in them by that subsection.
I turn to subsection 9(4) of the Act and I quote it once again:
9....
(4) Whenever an inspector believes on reasonable grounds that any plant or other matter constitutes a hazard because it is or could be infested with any pest or constitutes a biological obstacle to the control of any pest, he may confiscate such plant or other matter and may order its destruction or disposition forthwith.
I am of opinion that the standard provided by subsection 9(4) of the Act is a reasonable stan dard: to act under the subsection, an inspector must believe on reasonable grounds that the plants or other matter to be confiscated are hazardous because they are or could be infested with a pest. I confess, however, that I was somewhat hesitant on this point because of the stipulation that an inspec tor may act when he believes on reasonable grounds that the plants or other matter are or could be infested. I am satisfied, however, that the public interest in preventing the spread of infesta tion is sufficiently strong to warrant this rather low standard.
The respondent submitted that confiscation without compensation would be enough to brand the seizure of the importer's goods as unreason able. For purposes of section 8 of the Charter, I would not regard the submission as a relevant consideration. In determining whether a seizure is unreasonable, it is not pertinent whether or not the statute authorizing it provides compensation for a loss incurred as a result. "Reasonableness" in the section does not embrace such inquiries as whether or not the policy upon which the legislation is based is good or bad: see Rosenberg, Unreasonable Search and Seizure: Hunter v. Southam Inc. (1985), 19 U.B.C. Law Rev. 271, at pages 278 and 279.
I will next consider whether the inspectors acted within subsection 9(4). As I have noted earlier, the decision made by the "inspectors" on Friday after noon, May 21, was the effective decision to confis cate and destroy the importer's trees and shrubs. The effect of the order to destroy, signed on Friday night, was to put the importer under an immediate duty to destroy, provided, of course, that the order was validly made. There are several conditions to the validity of an order to destroy made by an inspector or inspectors under subsection 9(4) of the Act. One is that the inspectors must, in fact, believe that the plants confiscated either are or could be infested with a pest and thus constituted a hazard. The Trial Judge made a clear finding that the inspectors did have such a belief. But subsec tion 9(4) of the Act also requires that an inspector, acting under the subsection, must have reasonable grounds for his belief.
The respondent submitted that the inspectors lacked reasonable grounds for their belief that the trees and shrubs were in fact infested because, it was submitted, such larvae as were found were either dead or quite inert: they were, it was sub mitted, not capable of doing damage.
There is, however, evidence that at least some of the larvae discovered on the Bald Hill Nurseries lot were alive: Mr. Holm so testified. And Mr. Weiler, in his discovery evidence which was read in at trial / sfated that the larvae which he had seen
were alive. Mr. Parker had looked at some of the larvae brought to Fredericton by Mr. Weiler, and he testified that they moved when touched. Mr. Watt did not, of course, actually see any of the larvae, but he was entitled to rely on information he received from officials of his Department, including Mr. Parker and Mr. Weiler. He stated that he was particularly persuaded to order destruction of the trees and shrubs by information he received from Mr. Parker. He also had read to him the memorandum signed by Dr. Magasi which referred to live larvae.
In my view there was sufficient evidence to find that live gypsy moth larvae were found on the Bald Hill Nurseries lot; thus the inspectors had reason to believe that at least the Bald Hill lot carried pests.
It was also argued, however, that the inspectors had no reasonable grounds for believing that either of the other two lots, the Cherry Hill Nurseries lot and the Weston Nurseries lot, was infested with gypsy moth larvae. And it is quite true that Mr. Holm found no larvae on either of those lots. However, it is also true that the three lots of trees were all brought into Canada in the same closed truck. I am not persuaded that this circumstance would be irrelevant to a conclusion that all three lots might well have been infested. It may well be that, in deciding that the entire shipment should be destroyed, the inspectors erred on the side of cau tion. But, as indicated above, they were entitled to do so, and, when faced with the possibility of an "invasion" of gypsy moths it would be acceptable, in my view, to be very cautious indeed.
My conclusion from all of the foregoing is that, in the circumstances of this case, though there may have been a seizure within the meaning of that term in section 8 of the Charter, it was not unreasonable for the sole reason that it was con ducted without a warrant: the standard in subsec tion 9(4), given that it is premised upon an emer gency, is in itself reasonable, and the inspectors acted within that standard.
The importer also invoked paragraphs 1(a) and 1(b) of the Canadian Bill of Rights. But the importer, since it is a corporation, cannot rely on either of those paragraphs.
The respondent also relied on paragraph 2(e) of the Bill of Rights. But the inspector's order to destroy was made in what I have described as an "emergency situation", that is, under subsection 9(4). There was a duty to act fairly, but in this emergency situation that duty did not extend to a duty to grant a hearing. See White v. Redfern (1879), 5 Q.B.D. 15 and De Verteuil v. Knaggs, [1918] A.C. 557 (P.C.), at pages 560-561.
Reliance was also placed on section 7 of the Charter. But section 7 provides no protection against deprivation of security of property. "Life, liberty and security of the person" are the values protected by the section. Nor is there any merit in the respondent's reliance on section 15 of the Charter. Indeed, section 15 was not even in force at the time these events took place.
I now turn to the question whether the respon dent is entitled to succeed on the basis of the principle in Manitoba Fisheries.
The principle in Manitoba Fisheries is based on the proposition that a statute authorizing the Crown to take property imposes an obligation to compensate the person whose property is taken. The duty to compensate, as I have said in another case, "is implicit in the Act itself; in conventional terms it is based on an implied term of the stat ute": see A. M. Smith & Co., Ltd. y. R., [1982] 1 F.C. 153 (C.A.), at page 160.
As Mr. Justice Heald indicates, the presumption that a right to compensation is implicit in the statute can be displaced by clear words only. It remains, however, that, since it is based on an implied term, it can be displaced. Whether or not it is depends on the provisions of the statute itself. In B.C. Medical Assn. v. R. in Right of B.C. (1984), 58 B.C.L.R. 361 (C.A.), Mr. Justice Lam- bert said at page 366:
The rule is not a purely mechanical matter of examining the legislation and asking whether there is an express written
reference to the fact that the taking is to be without compensa tion, in words that say "without compensation of any kind", or some equivalent; and that, failing such words, compensation must be paid.
Rather, it is the intention of the legislature that is being sought. The legislature will not be presumed to have coun tenanced an injustice, unless the contrary intention appears. But the rule does not override the legislative intention. It is not a device by which the courts can enable a claimant to outwit the legislature.
I will quote subsection 3(2) and paragraph 4(h)
of the Act. These provisions read:
3....
(2) The Minister may order compensation to be paid in respect of any plant or other matter destroyed or prohibited or restricted from sale or any restriction of the use of any property or premises pursuant to the Act in the amounts approved by, and subject to the terms and conditions prescribed by, the regulations.
4. The Governor in Council may make regulations for pre venting or controlling the introduction or admission into Canada, the spreading within Canada or the conveying within or from Canada of any pest or any plant or other matter referred to in section 3 and without limiting the generality of the foregoing may for that purpose make regulations
(h) for the awarding of compensation by the Minister for any plant or other matter destroyed or prohibited or restricted from sale or for any restriction of the use of any property or premises pursuant to this Act, and prescribing the terms and conditions upon which any such compensation may be awarded and the maximum amounts of any such compensation;
These provisions, as I read them, would seem to be at odds with an implicit right, based on the Act, to compensation. If there were such an implicit right, I could see vesting in the Minister an authority to regulate or even to limit the right. I, however, find that a statutory right in the Minister to "order compensation to be paid in respect of any plant or other matter destroyed" is inconsistent with a gen eral statutory right to compensation existing apart from a Minister's order. This is, to me, a suf ficiently clear indication that the statute is not intended implicitly to provide compensation.
Finally, I would observe that the Crown submit ted that, in awarding damages, the Trial Judge erred in that he proceeded on the basis that it had been admitted that the value of the goods destroyed was $13,073.50. The Crown submitted
that it had made no such admission. And it is clear from pages 33 and 34 of the transcript that the Crown admitted only that the purchase price of the goods was $8,429.19 in Canadian funds; the price had been paid in U.S. dollars. The importer claimed and was allowed by the Trial Judge a mark-up of fifty per cent, making a total of $13,073.50.
Counsel for the Crown argued that the goods, at the time of their destruction had little or no market value because they were infested with gypsy moth larvae. If it were necessary to decide the question, I would agree with this submission. I have decided that the inspectors had reasonable grounds for believing that the goods were hazard ous because they were infested with gypsy moths and that they properly ordered the importer to destroy the goods. Thus, even if the importer had succeeded in establishing any of its claims, it would have been very difficult, if not impossible, to assess damages, or, indeed, to award any compen sation on the Manitoba Fisheries principle, even if it were applicable.
For all of these reasons I would allow the appeal and dismiss the respondent's action. I agree with Mr. Justice Hugessen's proposed disposition as to costs.
* * *
The following are the reasons for judgment rendered in English by
HUGESSEN J.: This is an appeal from a judg ment of the Trial Division condemning the Crown to pay damages to plaintiff in the amount of $13,439.02 and costs.
The essential facts can be shortly stated. The plaintiff imported nursery stock from the United States. By common agreement, the stock was not inspected at the border but at plaintiff's own prem ises soon after its arrival. The inspection was con sensual. The inspectors found some of the trees to contain larvae which were later identified to their satisfaction (and, it may be added, to that of
plaintiff's officers as well) to be the gypsy moth. The inspectors formed the opinion that there was a reasonable danger that the whole shipment was or would shortly become infested. The gypsy moth is a dangerous parasite, especially in a country and a province whose economy depends to a substantial extent on the forestry. The inspectors confiscated the trees and ordered the plaintiff to destroy them. The order was not obeyed and, after a delay of four days, the inspectors destroyed the trees themselves.
The Trial Judge maintained the action on the basis that plaintiff had been the victim of an unreasonable search and seizure, contrary to sec tion 8 of the Charter of Rights. It is important, however, to note that it was the Trial Judge's view that the unreasonableness flowed from the provi sions of the statute itself and not from any improp er action on the part of the officials. Indeed the Trial Judge [at page 79] went out of his way to describe the inspectors, most of whom he had seen and heard, as "highly responsible officers". At another point of his reasons, he stated [at pages 75-76]:
I am fully satisfied that the inspectors carried out their duty as they were obligated to do under the Plant Quarantine Act and Regulations.
and again [at page 76]:
My appreciation of the evidence is that the inspectors did not refuse to hear the plaintiffs version. They did discuss the matter with Donald Miller and his father, the president of the plaintiff company, but the inspectors did not accept their proposed solutions. In the inspectors' views, further spraying would not destroy the larvae and returning the infested trees back to the United States could cause further infestation. They considered the larvae to be a dangerous pest that had to be destroyed at once. The inspectors felt that they had reasonable grounds to believe that the trees were infested with a pest and were thus authorized under the Plant Quarantine Act to order their destruction.
Those were findings which the Trial Judge was fully entitled to make upon the evidence before
him and with which we, as a court of appeal, have no right to interfere. 4
Indeed the evidence of the infestation by gypsy moths and its danger did not come from the Crown alone. Following the first visit by the inspectors, Mr. Donald Miller, plaintiff's vice-president, him self took samples of larvae from several of the trees and delivered them to the provincial forestry department, in Fredericton, for testing. In fact, for some undisclosed reason, the provincial authorities passed the larvae on to the Canadian Forestry Service laboratory of Environment Canada. The result appears in a letter to Mr. Miller which was produced as an exhibit at trial. It bears repeating:
Your sample of larvae collected on May 20 from linden, maple and oak nursery stock brought in from Rhode Island, has been identified as gypsy moth, Lymantria dispar. This major hard wood pest in the northeastern U.S. has until now, thanks to rigidly enforced regulations, been successfully excluded from our woodlands in New Brunswick as well as other Maritime Provinces.
In view of this alarming discovery and the serious consequences which could easily result, if these gypsy moth caterpillars are not absolutely contained, I will be notifying Agriculture Canada, Food Production and Inspection Operations, in Saint John. This agency, I understand, is already advising you on a specific course of action with respect to gypsy moth.
In the meantime, every attempt should be made to eradicate every possible trace of these caterpillars — so much is at stake! The enclosed leaflet contains pertinent life history details.
In the light of this material, plaintiff simply cannot be heard to argue that the larvae were not gypsy moth or that the Trial Judge's findings of fact in this regard were not fully justified by the evidence.
The issue therefore becomes one of law: are the provisions of the Plant Quarantine Act and the Regulations such that they cannot survive the coming into force of the Charter of Rights?
There can be no doubt that the Plant Quaran tine Act provides for search and seizure (and,
° Stein et al. v. 'Kathy K" et al. (The Ship), [ 1976] 2 S.C.R. 802.
indeed, confiscation and destruction) of property
without prior judicial authorization. Particular ref erence may be made to paragraph 6(1)(a) and to
subsection 9(4).
6. (1) An inspector may at any reasonable time
(a) enter any place or premises in which he reasonably believes there is any pest or plant or other matter to which this Act applies, and may open any container or package found therein or examine anything found therein that he has reason to believe contains any such pest or plant or other matter, and take samples thereof ....
9....
(4) Whenever an inspector believes on reasonable grounds that any plant or other matter constitutes a hazard because it is or could be infested with any pest or constitutes a biological obstacle to the control of any pest, he may confiscate such plant or other matter and may order its destruction or disposition forthwith.
The Trial Judge based his decision primarily on his finding that paragraph 6(1)(a) was incompat ible with section 8 of the Charter in that it allowed for a warrantless search in all circumstances. Strictly speaking that finding was irrelevant to the present case since, as I have indicated, there was agreement between plaintiff and the inspectors that the imported shipment would be inspected at plaintiffs premises. Accordingly, the inspection was consensual and the inspectors did not need to call on the powers granted them by paragraph 6(1)(a). The matter does not end there, however, for the inspection was followed by confiscation and destruction pursuant to subsection 9(4).
While it was argued before us that section 8 of the Charter does not protect property rights and therefore does not reach the confiscation and destruction provisions of subsection 9(4), I prefer to leave that difficult question for another day. I am prepared to assume, for the purposes of the present decision, that the confiscation and destruc tion of the plaintiffs nursery stock by the inspec tors constituted a seizure within the meaning of section 8 of the Charter. Even with that assump tion, however, I do not think that the provisions of subsection 9(4) are inoperable as permitting an "unreasonable" seizure.
In evaluating the impact of the Charter and, in particular, of section 8 upon any given statutory provision, it seems to me that regard must be had both to the text and to the context of that provision.
As far as the text is concerned, I note that both paragraph 6(1)(a) and subsection 9(4) contain their own requirement of reasonableness. Any action which the inspector is authorised to take must be founded on reasonable belief. While this, of course, does not foreclose a finding that the provisions are rendered inoperable by the Charter, it is a factor which must be borne in mind when we are considering, as we are here, a claim to infringement of property rights wholly divorced from any question of privacy or of freedom from oppressive prosecution. If the inspectors have acted unreasonably, their action is illegal for that reason and the citizen has his recourse without any need to call the Charter in aid. As indicated above, however, the Trial Judge made specific findings negativing any claim the plaintiff might assert on that basis in the present case.
As to the context, it is my opinion that the test of what is "unreasonable" for the purposes of applying section 8 of the Charter will vary from case to case. Without attempting to be exhaustive, it seems to me that one will always have to look to the purpose of the statutory scheme authorising the search and seizure, to the nature of the prop erty or things seized, to the character of the prem ises where the search and seizure may normally be expected to be carried out and to the legitimate interests and expectations not only of the public at large but also of the person who is subject to the search and seizure. What is reasonable in terms of entry into and inspection of a restaurant kitchen or a commercial dairy, or a factory, or a mine will differ radically from what is reasonable for the search and seizure of private papers in a dwelling house. By the same token, there is a distinction between a statutory scheme which obviously envis ages routine inspections and testing at reasonable times in the normal course of business and one which is designed to permit, where necessary,
armed and forceable intrusion at three o'clock in the morning. In short, there is a difference in kind between the tramp of jackboots and the sniff of the inspector of drains.
In my view, there is clearly a category of public health-and safety-related inspections carried out in commercial or industrial premises where a war- rantless search and seizure is not only reasonable but essential for the protection of the public good.
This has been the view adopted in the United States with respect to the provisions of the Fourth Amendment, which admittedly are different from those of section 8:
Donovan v. Dewey, 101 S. Ct. 2534 (1981), at 2538
However, unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amend ment .... The greater latitude to conduct warrantless inspec tions of commercial property reflects the fact that the expecta tion of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. (per Marshall J.)
This doctrine has found an echo in this country even in the brief period of the Charter's existence:
R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), at 112
In my view, however, a clear distinction must be drawn between a general power to enter private premises without a warrant to search for contraband or evidence of crime and a power con ferred on designated officials to enter premises for inspection and audit purposes and to seize records, samples or products in relation to business and activities subject to government regula tion. (per Martin J.A.)
Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 51 O.R. (2d) 509 (C.A.), at 512
The standards to be applied to the reasonableness of a search or seizure and the necessity for a warrant with respect to criminal investigations cannot be the same as those to be
applied to search or seizure within an administrative and regulatory context. (per MacKinnon A.C.J.O.)
The evident purpose of the Plant Quarantine Act is the protection of our forests and our farms from infestation from parasites. The premises where inspectors under the Act are likely to exer cise their power of search and seizure will, in virtually every case, be open to public view and, in most cases, be either out-of-doors or in public commercial premises. The nature of the things to be searched is, by definition, plant material or parasites, in which there can be no legitimate expectation of privacy. The search must be con ducted at a reasonable time and be based upon reasonable belief; if it is not, the citizen has his recourse at law.
Once, as a result of the search, plant material is found to be infested and to constitute a hazard, the public interest in its seizure and destruction forth with must surely outweigh any interest whose pro tection is envisaged by section 8 of the Charter.
All these things being considered, it is my view that the quoted provisions of the statute do not authorise an unreasonable search and seizure.
Plaintiff's other contentions with respect to sec tions 7 and 15 of the Charter and paragraph 2(e) of the Bill of Rights are wholly without merit.
There remains for consideration the somewhat halfhearted suggestion by plaintiffs counsel, made by him for the first time on appeal, that the action might succeed as a claim for compensation on the principle of the Manitoba Fisheries case. 5
As I read that case, such a claim would have to be based upon a statutorily authorised taking by the Crown without payment of compensation. In my view, the facts to support such a claim are not
5 Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101.
pleaded; indeed the whole of plaintiff's statement of claim seeks damages for illegal trespass to and destruction of property, allegations completely at variance to those required to support a Manitoba Fisheries claim.
I would not, however, want to place my pro posed disposition of this appeal solely upon my view that the pleadings do not support a claim based on Manitoba Fisheries, for I am further of the opinion that, even if such a claim were proper ly pleaded, it would have to be dismissed.
If I understand it correctly, the decision in the Manitoba Fisheries case is rooted in a principle of statutory construction: a presumption that Parlia ment does not intend to deprive the citizen of his lawfully held property without compensation. The principle can only apply, therefore, where the taking is authorised by statute for, if it is unautho rised, the right to compensation flows from the unlawfulness and not from any presumption of parliamentary intention. It can also only apply where the property is lawfully held. Leaving aside all questions of title, where the property is of such a nature that it cannot be lawfully possessed (as, for example, in virtue of subsection 3(1) of the Narcotic Control Act [R.S.C. 1970, c. N-1]) there can surely be no presumption of a legislative intent to compensate for the deprivation of such possession.
On the uncontested facts of the present case, the property of which plaintiff claims to have been deprived had been imported into this country. That importation was conditional upon the property passing inspection under the Plant Quarantine Act. It did not do so. As a result, the possession of the property in Canada became unlawful in accordance with the terms of the Act and the Regulations. The deprivation of such unlawful possession can create no presumption of an intent to compensate. To take a banal example, the tra veller who returns from the United States and is found to be carrying more liquor than is permitted by law can surely make no claim for compensation
for the bottles which are confiscated and destroyed at the border.
For these reasons and with due respect for the contrary opinion, I conclude that the plaintiff's action can no more be maintained on the basis of the Manitoba Fisheries principle than it could on the basis upon which it was originally pleaded.
In the result, I would allow the appeal, set aside the judgment appealed from and dismiss the plain tiff's action.
As to costs, counsel for the Crown indicated that he did not seek them either here or below and I would award none.
 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.