LEADING DECISIONS OF THE SUPREME COURT OF CANADA

Transcription

1 LEADING DECISIONS OF THE SUPREME COURT OF CANADA LAWSON A.W. HUNTER v. SOUTHAM, INC. September 17, 1984 EDITORS PETER H. RUSSELL UNIVERSITY OF TORONTO RAINER KNOPFF UNIVERSITY OF CALGARY F.L. MORTON UNIVERSITY OF CALGARY PRODUCED AND DISTRIBUTED BY THE RESEARCH UNIT FOR SOCIO-LEGAL STUDIES FACULTY OF SOCIAL SCIENCE UNIVERSITY OF CALGARY CALGARY, ALBERTA T2N 1N4

2 DICKSON, J. LASKIN, C. J.* and RITCHIE, DICKSON, BEE1Z, ESTEY, MCINTYRE, CHOUINARD, LAMER, and WILSON, JJ. concurring. The Constitution of Canada, which includes the Charter of Rights and Freedoms, is the supreme law of Canada. Any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Section 52(1) of the Constitution Act, 1982 so mandates. The constitutional question posed in this appeal is whether s.10(3), and by implication s.l0(l) of the Combines Investigation Act, R.S.C. 1970, c.c-23 (the "Act") are inconsistent with s.8 of the Charter by reason of authorizing unreasonable searches and seizures and are therefore of no force and effect. I BACKGROUND Subsections 10(1) and 10(3) of the Combines Investigation Act provide: 10 (1) Subject to subsection (3) in any inquiry under this Act the. Director [of Investigation and Research of the Combines Investigation Branch] or any representative authorized by him may enter any premises on which the Director believes there may be evidence relevant to the matters being inquired into and may examine any thing on the premises and may copy or take away for further examination or copying any book, paper, record or other document that in the opinion of the Director or his authorized representative, as the case may be, may afford such evidence. 10 (3) Before exercising the power conferred by subsection (1), the Director or his representative shall produce a certificate from a member of the [Restrictive Trade Practices] Commission, which may be granted on the ex parte application of the Director, authorizing the exercise of such power. On April 13, 1982, in the course of an inquiry under the Act, the appellant Lawson A. W. Hunter, Director of Investigation and Research of the Combines Investigation Branch, authorized the other appellants, Messrs. Milton, Murphy, McAlpine and Marroco, all Combines Investigation officers, to exercise his authority under s.10 of the Act to enter and examine documents and other things at the business premises of the Edmonton Journal, a division of the respondent corporation, Southam Inc. On April 16, 1982, in fulfilment of the requirement in s.10(3) of the Act, Dr. Frank Roseman, a member of the Restrictive Trade Practices Commission, (the "R.T.P.C.") certified his authorization of this exercise of the Director s powers. On April 17, 1982, the Constitution Act, 1982, incorporating the Canadian Charter of Rights and Freedoms was proclaimed. Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search and seizure. * The Chief Justice took no part in the judgment. 1

3 On April 19, 1982, the officers presented their certified authorization at the premises of the Edmonton Journal. The English version of this certificate reads as follows: You are hereby authorized to enter upon the premises hereinafter mentioned, on which I believe there may be evidence relevant to this inquiry, and examine thereon and copy or take away for copying any other book, paper, record or other document that in your opinion may afford such evidence. The premises referred to herein are those occupied by or on behalf of Southam Inc Street Edmonton, Alberta and elsewhere in Canada The authorization has a breathtaking sweep; it is tantamount to a license to roam at large on the premises of Southam Inc. at the stated address "and elsewhere in Canada". On April 20, the officers commenced the search. They said they wished to search every file of Southam Inc. at Street, Edmonton, except files in the news room but including all files of J. Patrick O Callaghan, publisher of the Edmonton Journal. They declined to give the name of any person whose complaint had initiated the inquiry, or to say under which section of the Act the inquiry had been begun. They also declined to give more specific information as to the subject matter of the inquiry than that contained in the authorization to search. II THE POSITIONS OF THE PARTIES [Chief Justice Dickson summarized the arguments of the parties and the opinion of Prowse J. A. of the Alberta Court of Appeal finding ss.10(1)1(3) of the Act of no force or effect because they are inconsistent with s.8 of the Charter.] III UNREASONABLE SEARCH AND SEIZURE... It is clear that the meaning of "unreasonable" cannot be determined by recourse to a dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of government power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts "not to read the provisions of the Constitution like a last will and testament lest it become one". 2

4 The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian constitutional jurisprudence. It is contained in Viscount Sankey's classic formulation in Edwards v. Attorney General for Canada, [1930] A.C 124 at , cited and applied in countless Canadian cases: The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.... Since the proper approach to the interpretation of the Charter 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 State Tr 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.l066: 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. The defendants argued that their oaths as Kings messengers required them to conduct the search in question and ought to prevail over the plaintiffs property rights. Lord Camden rejected this contention, at p. l067: Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour s close without his leave: if he does he is a trespasser though he does no damage at all; if he wil1 tread upon his neighbour's ground he must justify it by law. Lord Camden could find no exception from this principle for the benefit of Kings messengers. He held that neither the instrusions nor the purported authorizations were supportable on the basis of the existing law. That law would only have countenanced such an entry if the search were for stolen goods and if authorized by a justice on the basis of evidence upon oath that there was "strong cause" to believe the goods were concealed in the place sought to be searched.... In my view the interests protected by s.8 are of a wider ambit than those enunciated in Entick v. Carrington.... There is, further, nothing 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 unreasonable 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 upon probable cause, supported by oath or affirmation, and particularly describing the 3

5 place to be searched and the persons or things to be seized. Construing this provision in Katz v. United States (1967), 389, U.S. 347, Steward J. delivering the majority opinion of the United States Supreme Court declared at p. 351 that "the Fourth Amendment protects people, not places". Justice Stewart 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 pp as "the 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. In the Alberta Court of Appeal, Prowse J.A. took a similiar approach to s.8, which he described as dealing "with one aspect of what has been referred to as the right of privacy, which is the right to be secure against encroachment upon the citizens reasonable expectation of privacy in a free and democratic society". 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 seizure 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 positively as an entitlement to a "reasonable" expectation of privacy, 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. The question that remains, and the one upon which the present appeal hinges, is how this assessment is to be made. When is it to be made, by whom and on what basis? Here again, I think the proper approach is a purposive one. A) When is the balance of interests to be assessed?... 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 interest of the state in advancing its puposes through such interference. I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusion upon individuals expectation of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure In the present case the appellants make no argument that it is infeasible or unnecessary to obtain prior authorization for the searches contemplated by the Combines Investigation Act and, in my view, no such argument could be made. I would therefore conclude that in the absence of a valid procedure for prior authorization searches conducted under the Act 4

6 would be unreasonable. In the event, s.10(3) does purport to establish a requirement for prior authorization, specifying, as it does, that searches and seizures conducted under s.10(1) must be authorized by a member of the R.T.P.C. The question then becomes whether s.10(3) provides for an acceptable prior authorization procedure. B) Who must grant the authorization? The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual s right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior. For such an authorization to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner.... The person performing this function need not be a judge, but he must at a minimum be capable of acting judcially Under the scheme envisaged by s.10 of the Combines Investigation Act it is clear that the Director exercises administrative powers analogous to those of the Minister under s.231(4) of the Income Tax Act.... But what of the member of the R.T.P.C. whom s.10(3) empowers to approve the Director s authorization? Is his investigatory or adjudicatory? In the Alberta Court of Appeal Prowse J.A. carefully reviewed the respective powers of the Director and the Commission and concluded that the Act was not entirely successful in separating the role of the Director as investigator and prosecutor from that of the Commission as adjudicator. In his view circumstances may arise under the Act where "the Director is acting as investigator and prosecutor and the Commission is acting as investigator and judge with respect to breaches of the Act".... In my view, investing the Commission or its members with significant investigatory functions has the result of vitiating the ability of a member of the Commission to act in a judicial capacity when authorizing a search or seizure under s.10(3). On this basis alone I would conclude that the prior authorization mandated by s.10(3) of the Combines Investigation Act is inadequate to satisfy the requirements of s.8 of the Charter and consequently a search carried out under the authority of ss.10(i) and 10(3) is an unreasonable one. Since, however, the Alberta Court of Appeal found other, perhaps even more serious defects in these provisions I pass on to consider whether even if s.10(3) did specify a truly neutral and detached arbiter to authorize searches it would nevertheless remain inconsistent with s.8 of the Charter. C) On what basis must the balance of interests be assessed? Section 10 is terse in the extreme on the subject of criteria for issuing an authorization for entry, search and seizure. Section 10(3) merely states that an R.T.P.C. member may grant an authorization ex parte. The only explicit criteria for granting such an authorization are those mentioned in s.10(1), namely: (1) that an inquiry under the Act must be in progress, and (2) that the Director must believe that the premises may contain relevant evidence Such an amorphous standard cannot provide a meaningful criterion for securing the right guaranteed by s.8. The location of the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state cannot depend on the subjective appreciation of individual adjudicators. Some objective standard must be established The purpose of an objective criterion for granting prior authorization to conduct a search 5

7 or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant s reasonable belief that revelant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist., to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure. Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave "strong reason to believe" that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is "reasonable ground to believe" that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation...." The phrasing is slightly different but the standard in each of these formulations is identical. The state s interest in detecting and preventing crime begins to prevail over the individual s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the state s interest is not simply law enforcement as, for instance, where state security is involved, or where the individual s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one. That is not the situation in the present case. In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s.8 of the Charter, for authorizing search and seizure. Insofar as ss.10( 1) and 10(3) of the Combines Investigation Act do not embody such a requirement, I would hold them to be inconsistent with s.8. READING IN AND READING DOWN The appellants submit that even if ss.10(1) and 10(3) do not specify a standard consistent with s.8 for authorizing entry, search and seizure, they should not be struck down as inconsistent with the Charter, but rather that the appropriate standard should be read into these provisions, An analogy is drawn to the case of MacKay v. The Queen, [1965] S.C.R. 789 in which this Court held that a local ordinance regulating the use of property by prohibiting the erection of unauthorized signs, though apparently without limits, could not have been intended unconstitutionally to encroach on federal compentence over elections, and should therefore be "read down" so as not to apply to election signs. In the present case, the overt inconsistency with s.8 manifested by the lack of a neutral and detached arbiter renders the appellants submissions on reading in appropriate standards for issuing a warrant purely academic. Even if this were not the case, however, I would be disinclined to give effect to these submissions. While the courts are guardians of the Constitution and of individuals rights under it, it is the legislature s responsibility to enact legislation that embodies. appropriate safeguards to comply with the Constitution s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. Without appropriate safeguards legislation 6

8 authorizing search and seizure is inconsistent with s.8 of the Charter. As I have said, any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. I would hold ss.10(l) and 10(3) of the Combines Investigation Act to be inconsistent with the Charter and of no force and effect, as much for their failure to specify an appropriate standard for the issuance of warrants as for their designation of an improper arbiter to issue them. Section 1 of the Charter provides: SECTION 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The phrase "demonstrably justified" puts the onus of justifying a limitation on a right or freedom set out in the Charter on the party seeking to limit. In the present case the appellants have made no submissions capable of supporting a claim that even if searches under ss.10(1) and 10(3) are "unreasonable" within the meaning of s.8, they are nevertheless a reasonable limit, demonstrably justified in a free and democratic society, on the right set out in s.8. it is, therefore, not necessary in this case to consider the relationship between s.8 and s.1. I leave to another day the difficult question of the relationship between those two sections and, more particularly, what further balancing of interests, if any, may be contemplated by s.l, beyond that envisaged by s.8. CONCLUSION By order of Chief Justice Laskin the constitutional question was stated as follows: Did the Alberta Court err in holding that subsection 10(3), and by implication subsection 10(1), of the Combines Investigation Act, R.S.C. 1970, c.c-23 are inconsistent with the provisions of Section 8 of the Canadian Charter of Rights and Freedoms and that they are therefore of no force or effect? I would answer that question in the negative. I would dismiss the appeal with costs to the respondent. 7