Hunter v. Southam Inc.,  2 S.C.R. 145 (1984)
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Hunter v. Southam Inc.,  2 S.C.R. 145Lawson A. W. Hunter, Director of Investigation and Research of the Combines Investigation Branch, Michael J. Milton, Michael L. Murphy, J. Andrew McAlpine, and Antonio P. Marrocco, also known as Anthony P. Marroco Appellants;andSoutham Inc. Respondent.File No.: 17569.1983: November 22; 1984: September 17.Present: Laskin C.J.* and Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.*The Chief Justice took no part in the judgment.on appeal from the court of appeal for albertaConstitutional law -- Canadian Charter of Rights and Freedoms -- Unreasonable search and seizure -- Combines Investigation Act search and seizure powers -- Standards required for issuance of warrant -- Standards not specified -- Neutrality of arbiter issuing warrant -- Whether search and seizure powers of Combines Investigation Act inconsistent with s. 8 of Charter and therefore of no force or effect -- Canadian Charter of Rights and Freedoms, s. 8 -- Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 10(1), (3).Pursuant to s. 10(1) of the Combines Investigation Act, the Director of Investigation and Research of the Combines Investigation Branch authorized several Combines Investigation officers to enter and examine documents and other things at a respondent's business premises in Edmonton "and elsewhere in Canada". The authorization was certified by a member of the Restrictive Trade Practices Commission pursuant to s. 10(3) of the Act. The Canadian Charter of Rights and Freedoms was proclaimed after the authorization was made but before the actual search had begun. Respondent unsuccessfully sought an interim injunction pending trial of the question whether the search was in violation of s. 8 of the Charter--the unreasonable search and seizure provision. The Alberta Court of Appeal ordered all documents taken from the respondent's premises sealed as an interim measure and proceeded with the appeal on the basis that the issue of whether s. 10 was inconsistent with the Constitution could have been properly dealt with as an application for summary judgment at first instance. Appellants appeal from that Court's finding that s. 10(3), and, by implication, s. 10(1) of the Act, were inconsistent with the Charter and therefore of no force or effect.Held: The appeal should be dismissed.The Canadian Charter of Rights and Freedoms is a purposive document, the provisions of which must be subjected to a purposive analysis. Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It is not enough that a determination be made, after the fact, that the search should not have been conducted. This can only be accomplished by a requirement of prior authorization. Accordingly, prior authorization, where feasible, is a precondition for a valid search and seizure. It follows that warrantless searches are prima facie unreasonable under s. 8. The party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness.Section 10(3) of the Combines Investigation Act provides for prior authorization of searches by a member of the Restrictive Trade Practices Commission. The procedures established by s. 10(3), however, are constitutionally defective in two respects.First, for the authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able to assess the conflicting interests of the state and the individual in an entirely neutral and impartial manner. This means that while the person considering the prior authorization need not be a judge, he must nevertheless, at a minimum, be capable of acting judicially. Inter alia, he must not be someone charged with investigative or prosecutorial functions under the relevant statutory scheme. The significant investigatory functions bestowed upon the Restrictive Trade Practices Commission and its members by the Act vitiated a member's ability to act in a judicial capacity in authorizing a s. 10(3) search and seizure and do not accord with the neutrality and detachment necessary to balance the interests involved.Second, 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 searches and seizures. Subsections 10(1) and 10(3) of the Act do not embody such a requirement. They do not, therefore, measure up to the standard imposed by s. 8 of the Charter. The Court will not attempt to save the Act by reading into it the appropriate standards for issuing a warrant. It should not fall to the courts to fill in the details necessary to render legislative lacunae constitutional.In the result, subss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the Charter and of no force or effect because they fail to specify an appropriate standard for the issuance of warrants and designate an improper arbiter to issue them.Attorney General of Canada v. Law Society of British Columbia,  2 S.C.R. 307, followed; Petrofina Canada Ltd. v. Chairman, Restrictive Trade Practices Commission (No. 2),  2 F.C. 386, applied; Katz v. United States, 389 U.S. 347 (1967), adopted; Entick v. Carrington (1765), 19 St. Tr. 1029, 1 Wils. K.B. 275; The Queen v. Metropolitan Toronto Pharmacists' Association (unreported, Ont. H. C., May 4, 1983); Edwards v. Attorney-General for Canada,  A.C. 124; Minister of Home Affairs v. Fisher,  A.C. 319; M`Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); United States v. Rabinowitz, 339 U.S. 56 (1950); Inland Revenue Commissioners v. Rossminster Ltd.,  1 All E.R. 80; Minister of National Revenue v. Coopers and Lybrand,  1 S.C.R. 495; McKay v. The Queen,  S.C.R. 798, referred to.APPEAL from a judgment of the Alberta Court of Appeal  3 W.W.R. 385, 147 D.L.R. (3d) 420, 24 Alta. L.R. (2d) 307, 42 A.R. 93, allowing an appeal (heard as a proper case to have been treated at first instance as an application for summary judgment) from a judgment of Cavanagh J. dismissing an application for an interim injunction pending trial of the matter in issue. Appeal dismissed.Eric A. Bowie, Q.C., and Ingrid C. Hutton, Q.C., for the appellants.A. H. Lefever and F. S. Kozak, for the respondent.The judgment of the Court was delivered by1. Dickson J.--The Constitution of Canada, which includes the Canadian 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. 10(1), 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 Background2. 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....(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.3. 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.4. 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.5. On April 17, 1982, the Constitution Act, 1982, incorporating the Canadian Charter of Rights and Freedoms was proclaimed. Section 8 of the Charter provides:8. Everyone has the right to be secure against unreasonable search or seizure.6. 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:In the matter of the Combines Investigation Act and section 33 and section 34(1)(c) thereof and in the matter of an Inquiry relating to the Production, Distribution and Supply of Newspapers and Related Products in EdmontonTO: M. J. MiltonM. L. MurphyJ. A. McAlpineA. P. Marrocco being my representatives under section 10 of the Combines Investigation ActYou are hereby authorized to enter upon the premises hereinafter mentioned, on which I believe there may be evidence relevant to this inquiry, and examine anything thereon and copy or take away for copying any book, paper, record or other document that in your opinion may afford such evidence....
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