New Brunswick v. Professional Vending and Amusement Ltd., (1985) 62 N.B.R.(2d) 184 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: February 20, 1985
• Jurisdiction: New Brunswick
• Citations: (1985), 62 N.B.R.(2d) 184 (PC)

N.B. v. Prof. Vending (1985), 62 N.B.R.(2d) 184 (PC);

    62 R.N.-B.(2e) 184; 161 A.P.R. 184

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Attorney General of New Brunswick v. Professional Vending and Amusement Ltd.

Indexed As: New Brunswick v. Professional Vending and Amusement Ltd.

Répertorié: New Brunswick v. Professional Vending and Amusement Ltd.

New Brunswick Provincial Court

Harper, P.C.J.

February 20, 1985.

Summary:

Résumé:

Acting under the authority of a search warrant, police officers seized a gaming device. No criminal proceedings were instituted pursuant to the seizure and the device was held well over the 30 day period required by s. 181(4)(b) of the Criminal Code of Canada. The Crown applied under s. 181(3) for a declaration of forfeiture or disposal. The alleged owner of the device argued that the search warrant was issued under s. 443 of the Code and that the court was without jurisdiction because the Crown failed to commence proceedings within three months following the seizure as required by s. 446(1). The Crown alleged that the search warrant was issued pursuant to s. 181(1) of the Code, which did not prescribe any specific time limit during which seized articles could be held.

The New Brunswick Provincial Court, in a decision unreported in this series of reports, held that the device was seized pursuant to a search warrant issued under s. 181(1), and that the Provincial Court had jurisdiction to hear the Crown's forfeiture application. The Provincial Court then adjourned the matter to permit the alleged owner to apply to quash the search warrant. The alleged owner subsequently applied under Rule 69 to quash the warrant and for prohibition to prohibit any Provincial Court judge from hearing the matter on the ground of lack of jurisdiction.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision unreported in this series of reports, dismissed the application.

The alleged owner then objected that s. 181 of the Code was invalid as being contrary to the right to be protected from unreasonable search and seizure in s. 8 of the Canadian Charter of Rights and Freedoms.

The New Brunswick Provincial Court agreed with the owner on this point and held that s. 181 was unconstitutional and unenforceable. Accordingly, the search warrant was invalid, the search and seizure thereunder unreasonable and illegal, and the court ordered the return of the device to its owner.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The New Brunswick Provincial Court held that s. 181(1) of the Criminal Code of Canada was contrary to s. 8 of the Canadian Charter of Rights and Freedoms - The court accordingly held that search warrants issued under s. 181 were invalid - See paragraph 38.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The New Brunswick Provincial Court held that s. 181(1) of the Criminal Code of Canada (authorizing the issue of search warrants respecting gambling or bawdy house offences) was contrary to s. 8 of the Charter of Rights (unreasonable search and seizure), because (1) the written report required by s. 181(1) to authorize the issue of the warrant was not of necessity required to be on oath and (2) there was no requirement that the justice himself be satisfied that there were reasonable grounds for the complainant's belief that an offence was being committed on the premises - S. 181(1) was therefore unenforceable - See paragraph 38.

Criminal Law - Topic 3095

Search warrants - Issue of - Conditions precedent - The New Brunswick Provincial Court set out the conditions precedent to issuing a search warrant under s. 181(1) of the Criminal Code of Canada - See paragraph 10.

Criminal Law - Topic 3098

Search warrants - Contents of - The New Brunswick Provincial Court held that since no exact form of search warrant was required under s. 181 of the Criminal Code of Canada, the Crown may draft its own document to suit the circumstances - The court approved the form and substance of a search warrant used by the Crown under s. 181 - See paragraphs 14 to 15.

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, consd. [para. 19].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 181(1) [paras. 1, 5, 7, 9, 14-15, 17, 37-38]; sect. 443 [paras. 4-5, 14], sect. 446(1) [paras. 4, 14].

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [paras. 7, 12, 18, 21- 22, 34]; sect. 24 [paras. 18-19].

Constitution Act, 1982, sect. 52(1), sect. 52(2) [paras. 13, 18].

United States Constitution, Fourth Amendment [paras. 35-36].

Counsel:

[None disclosed.]

This application was heard before Harper, P.C.J., of the New Brunswick Provincial Court, whose decision was delivered on February 20, 1985.