Rollinson v. Canada, (1991) 40 F.T.R. 1 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: December 03, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1991), 40 F.T.R. 1 (TD)

Rollinson v. Can. (1991), 40 F.T.R. 1 (TD)

MLB headnote and full text

George Gordon Rollinson (plaintiff) v. Her Majesty the Queen (defendant)

(T-560-84)

and Between:

Her Majesty The Queen (plaintiff) v. George Gordon Rollinson (defendant)

(T-245-87)

Indexed As: Rollinson v. Canada

Federal Court of Canada

Trial Division

Muldoon, J.

January 17, 1991.

Summary:

Canada Customs Officials seized a yacht and two vehicles from Rollinson. Rollinson commenced an action against the federal Crown for declaratory relief and damages, alleging, inter alia, numerous Charter violations. The Crown commenced a separate action against Rollinson seeking to have its actions declared lawful.

The Federal Court of Canada, Trial Division, allowed Rollinson's action, and dismissed the Crown's action, except with respect to the seizure of one vehicle.

Civil Rights - Topic 204

Life - Seizure of dwelling - A Canadian citizen lived on a yacht - When the yacht was returning to Canada from the United States, four customs inspectors, without warrant and after dark, stormed the vessel, searched it and seized the citizen's private papers (i.e., the ship's logs) - Examination of these papers led to subsequent seizures of the yacht - The last seizure resulted in the vessel being restricted to a certain pier, causing the citizen and his wife to live under terrible conditions and endure a storm which damaged the yacht - The Federal Court of Canada, Trial Division, held that the citizen's s. 7 Charter rights were violated (i.e., the right to life and security of the person) - See paragraph 156.

Civil Rights - Topic 1205

Security of the person - General - Security of the person defined - [See Civil Rights - Topic 1521].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 204].

Civil Rights - Topic 1421

Security of the person - Border search - General - What constitutes a border search - A Canadian citizen lived on a yacht - When the yacht was returning to Canada from the United States, four members of a mobile customs inspection unit, without warrant and after dark stormed the yacht - When the search yielded no incriminating evidence, the inspectors seized the ship's logs - The Federal Court of Canada, Trial Division, held that the seizure of the papers did not constitute a "border search" and therefore s. 8 of the Charter applied to the seizure of the papers - See paragraphs 47, 51, 64.

Civil Rights - Topic 1521

Property - Personal property - General - The Federal Court of Canada, Trial Division, per Muldoon, J., stated that "in regard to s. 7 [of the Charter], it is true that it does not accord entrenched rights in and to property. There are, however, certain kinds of property which are of a nature to transcend that salutary general principle and relate directly to the security of the person: necessary drugs and medicines; a coronary pacemaker ...; a respirator device; and of course, that physical property which affords warmth and shelter and requires the State to respect it and to enter only upon proper previous judicial authorization, a person's dwelling; and necessary personal clothing appropriate to the season ..." - See paragraph 156.

Civil Rights - Topic 1525

Property - Personal property - Personal papers - A Canadian citizen lived on a yacht - When the yacht was returning to Canada from the United States, four customs inspectors, without warrant and after dark stormed the yacht - After a search yielded nothing incriminating, they seized the ship's logs (i.e., the citizen's private papers), without giving him an inventory or receipt - The Federal Court of Canada, Trial Division, held that the seizure of the private papers was an unreasonable and unlawful search and seizure contrary to s. 8 of the Charter - See paragraphs 1 to 63, 161 - The court held that the seized papers must be excluded from evidence either under s. 24(2) of the Charter or on the basis of common law principles - See paragraph 64.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See Civil Rights - Topic 204].

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - A Canadian citizen lived on a yacht - When the yacht was returning to Canada from the United States, four customs inspectors, without warrant and after dark stormed the vessel, searched it, and seized the citizen's personal papers (i.e., the ship's logs) - Examination of these papers lead to subsequent seizures of the yacht - The Federal Court of Canada, Trial Division, held that the seizure of the papers was unlawful within the meaning of s. 8 of the Charter and therefore the seizures of the yacht based on the papers were also unlawful - See paragraph 157.

Civil Rights - Topic 3838

Cruel and unusual punishment - What constitutes - Search, seizure, interrogation or threats by Crown officials - A Canadian citizen lived on a yacht - When the yacht was returning to Canada from the United States four customs inspectors without warrant and after dark stormed the yacht - After a search yielded nothing incriminating, they seized the ship's logs (i.e., the citizen's private papers) - The citizen was also interrogated and threatened by customs officials - The Federal Court of Canada, Trial Division, held that the customs officials breached s. 12 of the Charter by subjecting the citizen to cruel and unusual punishment - See paragraphs 158, 161.

Civil Rights - Topic 5544

Equality and protection of the law - Denial of - What constitutes - Unequal administration of law - Customs officials in an area on the west coast, where they were very busy, posted a sign for inbound vessels to call a certain telephone number to check in - Later the officials argued that compliance with the sign was not enough to satisfy the literal provisions of the Customs Act and it was up to a citizen, who allegedly violated the Act, to physically report to customs - The Federal Court of Canada, Trial Division, held that the Crown denied the citizen's equality rights (Charter, s. 15(1)), by changing the rules after the citizen complied with the Crown's sign (i.e., selectively enforcing the literal provisions of the Act to make a scapegoat of the citizen) - See paragraph 159.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1525].

Civil Rights - Topic 8375

Charter - Denial of rights - Remedies - Damages - The Federal Court of Canada, Trial Division, held that certain treatment by customs officials of a citizen returning to Canada from United States by boat violated the citizen's Charter rights (ss. 7, 8, 12 and 15) - As a remedy under s. 24 of the Charter the court issued various declaration and ordered the Crown to pay damages - See paragraph 161.

Customs - Topic 3001

Search and seizure - General - [See Civil Rights - Topic 204; first Civil Rights - Topic 1556; Civil Rights - Topic 3838; Civil Rights - Topic 5544; Civil Rights - Topic 8375].

Customs - Topic 3004

Search and seizure - Personal papers - The Federal Court of Canada, Trial Division, stated that "the jurisprudence which enhances the authority of customs agents to detain border-crossers and to search for and seize goods including contraband does not carry such authority in regard to seizing personal papers" - See paragraph 51.

Customs - Topic 3004

Search and seizure - Personal papers - [See Civil Rights - Topic 1421; Civil Rights - Topic 1525].

Evidence - Topic 7521

Competency of evidence - Illegally obtained evidence - General principles - The Federal Court of Canada, Trial Division, reviewed when illegally obtained evidence would be excluded at common law - See paragraphs 76 to 81.

Evidence - Topic 7533

Competency of evidence - Illegally obtained evidence - Exclusion of - General - [See Civil Rights - Topic 1525].

Cases Noticed:

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, dist. [para. 49].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, dist. [paras. 49, 68].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153, dist. [para. 50].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [paras. 52, 55, 57, 58].

Entick v. Carrington (1765), 19 St. Tr. 1029; 1 Wils. K.B. 275; 95 E.R. 807, refd to. [paras. 52-54].

R. v. Rao (1984), 4 O.A.C. 162; 12 C.C.C.(3d) 98 (C.A.), refd to. [para. 72].

Kuruma v. The Queen, [1955] A.C. 197, refd to. [paras. 78, 79, 80].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 80].

Noor Mohamed v. The King, [1949] A.C. 182, refd to. [para. 80].

Callis v. Gunn, [1964] 1 Q.B. 495, refd to. [para. 80].

R. v. Bureau, [1949] S.C.R. 367, refd to. [para. 97].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90, dist. [paras. 98, 99, 101].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Attorney General of Ontario, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671, refd to. [para. 149].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1; 50 C.C.C.(2d) 353, refd to. [para. 149].

Paragon v. Magna, [1972] 3 W.W.R. 106, refd to. [para. 162].

Queen Caroline's Case (1820), 2 Brod. & B. 284 (H.L.), refd to. [para. 169].

Statutes Noticed:

Canada Evidence Act (1970) - see Evidence Act.

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 21 [para. 95]; sect. 30 [para. 101].

Canadian Charter of Rights and Freedoms, 1982, sect. 6(1) [paras. 71, 100]; sect. 7 [paras. 155, 156]; sect. 8 [para. 45 et seq.]; sect. 11 [para. 100]; sect. 12 [paras. 155, 158]; sect. 15(1) [paras. 155, 159]; sect. 24 [paras. 65-76].

Constitution Act, 1867, sect. 92(14) [para. 67]; sect. 101 [paras. 67, 160].

Criminal Code, R.S.C. 1970, c. C-34, sect. 89(1) [para. 99]; sect. 444 [para. 20].

Criminal Code, R.S.C. 1985, c. C-46, sect. 2, sect. 488 [para. 20].

Customs Act, R.S.C. 1970, c. C-40, sect. 11 [paras. 60, 109, 154]; sect. 18 [para. 154]; sect. 231 [para. 60].

Evidence Act, R.S.C. 1970, c. E-10, sect. 10(1) [para. 169]; sect. 21 [para. 95]; sect. 30 [para. 101].

Evidence Act (1985) - see Canada Evidence Act.

United States Constitution, Fourth Amendment [para. 56].

Authors and Works Noticed:

Linden, Canadian Tort Law (4th Ed. 1988), pp. 31, 32 [para. 152].

Linden, Tort Law's Role in the Regulation and Control of the Abuse of Power, Law Society of Upper Canada Special Lectures (1979), pp. 67, 73-82 [para. 150].

Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), pp. 335 [para. 77]; 347 [para. 78]; 501 [para. 169].

Williams, Glanville, Textbook of Criminal Law (1983), p. 456 [para. 154].

Counsel:

J.C. Blewett, for the plaintiff;

G.O. Eggertson, for the defendant.

Solicitors of Record:

J.C. Blewett, White Rock, British Columbia, for the applicant;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This case was heard in Vancouver, British Columbia, from November 29 to December 3, 1988, before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on January 17, 1991.