T-2812-84
Skis Rossignol Canada Ltée/Ltd. and Société de
Distribution Rossignol du Canada Ltée (Appli-
cants)
v.
Lawson A. W. Hunter, Director of Investigation
and Research under the Combines Investigation
Act, and J. C. Thivierge, Deputy Director of
Investigation and Research under the Combines
Investigation Act,
— and—
A. Brantz, R. Annan ' and H. Lalonde in their
quality of representatives of the Director of Inves
tigation and Research under the Combines Inves
tigation Act pursuant to section 10 of the Com
bines Investigation Act (Respondents)
— and—
Attorney General for Canada (Mis -en-cause)
Trial Division, Denault J.—Montreal, January 11;
Ottawa, February 22, 1985.
Combines — Searches and seizures under s. 10 of Combines
Investigation Act — Documents returned after microfilms and
photocopies made — Charges laid under Act before Sessions
Court — Recent Supreme Court of Canada decision in Hunter
et al. v. Southam Inc. holding s. 10(1) and (3) of Act in
violation of Charter s. 8 and searches and seizures thereunder
unreasonable and void — Whether applicants entitled to
return of copies, including those prosecution needs for case —
Declaration sought equivalent to holding documents inad
missible in proceedings before other court — Searches and
seizures herein in accordance with law then in effect as effected
after coming into force of Charter but before Supreme Court
decision — No other special circumstances — Prohibiting use
of documents by Crown equivalent to prohibiting use of legally
obtained evidence in criminal proceedings, such prohibition
being contrary to principles of law — Left to Sessions Judge to
decide whether use of said evidence "would bring the adminis
tration of justice into disrepute" — Motion dismissed,
respondents allowed to retain copies needed for prosecution —
Costs against applicants — Combines Investigation Act,
R.S.C. 1970, c. C-23, s. 10(1),(3) — 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. 8,
24(1), (2).
Constitutional law — Charter of Rights — Search or sei
zure — Searches and seizures under Combines Investigation
Act after coming into force of Charter but before provisions
authorizing same declared in violation of Charter by Supreme
Court of Canada in Hunter et al. v. Southam Inc. — Originals
returned after reproductions made — Charges laid under Act
— Applicants seeking return of all reproductions, including
those needed for prosecution — Copies needed for prosecution
not ordered returned as no special circumstances established,
other than Supreme Court decision — Left to Sessions Judge
to decide whether use of evidence "would bring the adminis
tration of justice into disrepute" — Costs against applicants
— Combines Investigation Act, R.S.C. 1970, c. C-23,
s. 10(1),(3) — 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. 8, 24(1),(2).
Following searches authorized under the Combines Investi
gation Act, documents belonging to the applicants were seized.
They were returned to their owners after having been
microfilmed and photocopied. Two years later, a charge under
the Act was laid against the applicants before a Court of
Sessions of the Peace. The applicants pleaded not guilty and
now bring a motion in the Federal Court to have the authoriza
tions, searches and seizures quashed. They also ask that all
copies of the seized documents be returned to them and that the
respondents be prohibited from using them. In the case of
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, the
Supreme Court of Canada held that searches under subsections
10(1) and 10(3) of the Act were unreasonable, the provisions
thereof being incompatible with section 8 of the Charter. The
only issue is whether, especially in view of that decision, the
applicants are entitled to the return of all copies of the seized
documents, even those which the Crown says it needs for the
prosecution.
The applicants argue that once a seizure has been quashed,
the owner is entitled to the return of all things seized, to have
any reproductions thereof handed over to him and to request
that use of the illegally obtained documents be prohibited. The
respondents, on the other hand, maintain that the return of
illegally seized goods may be ordered if the search authoriza
tion or the seizure were technically or substantively defective,
but not if the only flaw is the fact that the Act authorizing
them has been declared inoperative by the Supreme Court of
Canada.
Held, the searches and seizures are declared null and void as
in violation of section 8 of the Charter and the respondents are
ordered to return all extracts and copies of the seized docu
ments, except those necessary for the criminal prosecution.
Costs against the applicants.
While the Charter guaranteed Canadian citizens increased
protection, it was not intended to disturb or paralyse the legal
system. And before the coming into force of the Charter,
illegally seized objects were generally ordered to be returned to
their owners, unless they were needed for future prosecution. In
the relevant case law, there are those which hold that the
Crown should not be allowed to benefit from illegal searches
and seizures but there are others indicating that surrounding
circumstances should be taken into account.
In the present case, the Court is not being asked to rule that
a document is inadmissible in a trial before another court, but,
without considering, pursuant to subsection 24(2) of the Chart
er, whether it "would bring the administration of justice into
disrepute", to grant a declaration which has the same effect.
The searches and seizures herein were made after the coming
into force of the Charter but before the Supreme Court deci
sion in Hunter et al. v. Southam Inc. The investigators there
fore acted in accordance with the law then in effect. No special
circumstances other than that decision were established. To
prohibit the Crown from using the reproductions would amount
to prohibiting it from presenting legally obtained evidence in a
criminal proceeding, which is contrary to the principles of law.
Since an affidavit was filed by the respondents asserting that
the evidence was needed for the criminal prosecution, the Court
is justified in dismissing the motion. Support for that decision is
found in Jim Pattison Industries Ltd. v. The Queen, [1984] 2
F.C. 954 (T.D.), a Federal Court decision on a case where the
seizure, however, had been made before the Charter came into
force. It will be up to the judge of the Court of Sessions of the
Peace to determine whether the evidence thus obtained "would
bring the administration of justice into disrepute". Costs
against the applicants.
CASES JUDICIALLY CONSIDERED
APPLIED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; 11
D.L.R. (4th) 641; 55 N.R. 241; [1984] 6 W.W.R. 577;
33 Alta. L.R. (2d) 193; 84 DTC 6467; 14 C.C.C. (3d) 97;
41 C.R. (3d) 97; 9 C.R.R. 355; Blackwoods Beverages
Ltd. v. R., [1985] 2 W.W.R. 159; 47 C.P.C. 294 (Man.
C.A.); R. v. Rao (1984), 4 O.A.C. 162; 46 O.R. (2d) 80;
40 C.R. (3d) 1; 12 C.C.C. (3d) 97; R. v. Henry Caller
Inc., judgment dated January 17, 1985, Montreal Court
of Sessions of the Peace, C.S.P. No. 500-27-20425-841,
not yet reported; Jim Pattison Industries Ltd. v. The
Queen, [1984] 2 F.C. 954 (T.D.).
CONSIDERED:
Re Weigel and The Queen (1983), 7 C.C.C. (3d) 81
(Sask. Q.B.); Re Trudeau and The Queen (1982), 1
C.C.C. (3d) 342 (Que. S.C.).
REFERRED TO:
Re Black and The Queen (1973), 13 C.C.C. (2d) 446
(B.C.S.C.); Re Atkinson and The Queen (1978), 41
C.C.C. (2d) 435 (N.B.C.A.); Re Butler and Butler and
Solicitor-General of Canada et al. (1981), 61 C.C.C.
(2d) 512 (B.C.S.C.); Re Chapman and The Queen
(1984), 46 O.R. (2d) 65; 9 D.L.R. (4th) 244; 12 C.C.C.
(3d) 1 (C.A.); R. v. Noble (1984), 6 O.A.C. 11; 42 C.R.
(3d) 209; Lewis v. M.N.R. et al. (1984), 84 DTC 6550;
[1984] CTC 642 (F.C.T.D.); Re Gillis and The Queen
(1982), 1 C.C.C. (3d) 545 (Que. S.C.).
COUNSEL:
Bruno J. Pateras for applicants.
James L. Brunton for respondents and
mis -en-cause.
SOLICITORS:
Pateras & Iezzoni, Montreal, for applicants.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
DENAULT J.: The applicants were the object of
searches and seizures of documents in August
1982, and a charge comprising six counts was laid
on August 1, 1984 under the Combines Investiga
tion Act [R.S.C. 1970, c. C-23], before the Mon-
treal Court of Sessions of the Peace.
This search had been duly authorized in accord
ance with the procedure provided for in subsec
tions 10(1) and 10(3) of the Combines Investiga
tion Act. Equipped with this authorization, the
respondents seized 441 documents which they later
returned to the applicants, in September 1982,
having made microfiches and photocopies of them.
The applicants pleaded not guilty to the charge
laid against them in the Montreal Court of Ses
sions of the Peace and have now brought a motion
in the Federal Court of Canada to have the
authorizations, searches and seizures quashed, and
are asking that all microfiches or photocopies of
the documents seized be returned to them and that
the respondents be prohibited from using them.
The applicants based their motion on the deci
sion rendered by the Supreme Court of Canada in
Hunter et al. v. Southam Inc., [ 1984] 2 S.C.R.
145, which held that the provisions of section 10 of
the said Act were incompatible with section 8 of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
and that consequently a search thus made under
subsections 10(1) and 10(3) is unreasonable.
Faced with this judgment of the Supreme Court,
the respondents obviously had no choice but to
admit the illegality of the search authorizations
dated August 9 and 25, 1982 and of the seizures
made between August 23 and 26, 1982. Their
counsel therefore admitted that the seizures should
be quashed. He further admitted that the Court
had the inherent authority to order that the docu
ments be returned to the applicants and that the
motion, as brought, was the appropriate procedure;
in short, he did not contest the form of the motion
and even admitted that it was the appropriate
procedure for obtaining the relief sought. Conse
quently he had no objection to returning the
photocopies of the documents seized with the
exception of 49 of them which he needs, as sup
ported by the affidavit of one of the respondents,
to serve as evidence on the charge laid against the
applicants.
The only real issue is whether the applicants are
entitled to have all the photocopies or microfiches
of the documents illegally seized returned to them,
in particular those which the Crown maintains it
needs for purposes of its charge.
Sections 8 and 24 of the said Charter, which are
relevant to this case, read as follows:
8. Everyone has the right to be secure against unreasonable
search or seizure.
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.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in
the proceedings would bring the administration of justice into
disrepute.
According to counsel for the applicants, once
the seizure has been quashed, the victims of such
an unreasonable seizure are entitled to have the
articles seized returned to them and to any repro-
ductions that have been made of them even if
judicial proceedings have since been instituted. In
addition, the applicants would be entitled to
request that use of the illegally obtained docu
ments be prohibited.
According to counsel for the respondents, return
of the copies of illegally seized articles should be
permitted only with great caution, especially where
a charge has been laid; thus a return of such goods
may be ordered if the search authorization or the
seizure itself were technically or substantively
defective, or were not properly executed. This
would not be so if nothing vitiated the search or
seizure as such other than the fact that the Act
authorizing them has been held to be inoperative
by a decision of the Supreme Court of Canada.
It should be mentioned that in the case at bar,
according to the admissions of the parties, the
documents authorizing the search did not contain
any errors and the search itself and the seizure
were conducted in a normal manner. The only
basis on which they are being attacked is that
subsections 10(1) and 10(3) of the Combines
Investigation Act authorizing them have been
declared inoperative and incompatible with section
8 of the Charter.
Before the Canadian Charter of Rights and
Freedoms came into force, when search warrants
were quashed for defects of substance or form, the
courts were generally of the view that any objects
illegally seized had to be returned to their owners
unless they were needed for purposes of a future
prosecution, whether charges had already been
laid or were merely contemplated.'
Since the Charter came into force on April 17,
1982, Canadian citizens have enjoyed increased
protection, benefiting from the legal right given to
them by section 8 to be secure against unreason
able search or seizure. It should be noted at the
outset, as Monnin C.J. of the Manitoba Court of
Appeal stated in Blackwoods Beverages [at page
' Re Black and The Queen (1973), 13 C.C.C. (2d) 446
(B.C.S.C.); Re Atkinson and The Queen (1978), 41 C.C.C.
(2d) 435 (N.B.C.A.); Re Butler and Butler and Solicitor-Gen
eral of Canada et al. (1981), 61 C.C.C. (2d) 512 (B.C.S.C.).
166 W.W.R.]: 2
... that the Charter was not intended to disturb what is and
was a well-organized legal system nor to cause its paralysis.
The Charter is the supreme law of the country, it must be
applied and given the most liberal and free interpretation but it
must do so within the existing trial system. It creates new rights
and these — rights must have immediate and full effect. But the
ordinary trial procedure of information, preliminary hearing,
committal, trial and appeals at various levels of appellate
jurisdiction must not be disturbed. On the contrary, that hie
rarchy must be respected for the proper, efficient and speedy
administration of justice.
Although citizens are protected from unreason
able seizures, it is up to the courts to weigh each
case on its merits within the framework of
section 24.
In this regard certain recent decisions have dealt
with the question of returning illegally seized
articles, sometimes finding in favour of the victim
of the seizure, 3 and sometimes in favour of the
Crown. 4 An intermediate position was even adopt
ed in Lewis,' where Walsh J. ordered the Crown to
return the illegally seized articles, but only within
five days, thereby giving it time to carry out a new
seizure lawfully.
The position of those who favour a return of the
articles to their owner was summarized in Weigel
by Noble J. who, after reviewing the case law prior
to the Charter, stated [at pages 85-87]:
All of the cases mentioned (and no doubt some others) were
decided before the Charter of Rights came into force. While
the right to be secure from unreasonable search and seizure was
part of the law of Canada before the Charter, it can be seen
from the discussion of the authorities above that while the
courts seemed to agree they had jurisdiction to quash a defec-
2 Blackwoods Beverages Ltd. v. R., [1985] 2 W.W.R. 159;
47 C.P.C. 294 (Man. C.A.).
3 Re Chapman and The Queen (1984), 46 O.R. (2d) 65; 9
D.L.R. (4th) 244; 12 C.C.C. (3d) 1 (CA.); Re Weigel and The
Queen (1983), 7 C.C.C. (3d) 81 (Sask. Q.B.); Re Trudeau and
The Queen (1982), 1 C.C.C. (3d) 342 (Que. S.C.); Re Gillis
and The Queen (1982), 1 C.C.C. (3d) 545 (Que. S.C.).
R. v. Noble (1984), 6 O.A.C. 11; 42 C.R. (3d) 209;
Blackwoods Beverages, supra; R. v. Henry Caller Inc., Mon-
treal C.S.P. No. 500-27-20425-841, Jean Sirois J., judgment
dated January 17, 1985, not yet reported.
5 Lewis v. M.N.R. et al. (1984), 84 DTC 6550; [1984] CTC
642 (F.C.T.D.).
tive search warrant, they disagreed on whether or not the
articles seized under such a warrant should be returned to the
owner. In some cases it appears the court exercised its discre
tion in favour of the Crown's retaining the seized items merely
as a matter of convenience. In other cases (see the quote from
Butler above) the court would only allow the Crown to retain
the illegally seized items when it could demonstrate they repre
sented material evidence against the accused. The other side of
the coin was eloquently stated by Moshansky J., who found the
tendency to allow the Crown the right to retain illegally seized
articles repugnant—a sort of bonus for ignoring the clear
requirements of s. 443(1)(b). What justification is there for
ruling on the one hand that the issue of a search warrant was
illegally made and in the next breath saying to the authori-
ties—that is alright—you can use the seized articles as evidence
against the accused anyway. Can it be said this clearly contra
dictory position will encourage police officers and persons in
authority to abide by the laws designed to protect the rights of
the ordinary citizen? I think not.
In my view, the Charter of Rights must be interpreted in
such a way that the practices of the police authorities in seeking
a search warrant adhere to the intent and purpose of the law as
set out in s. 443(1)(b) and interpreted by the courts. I am also
of the opinion that if the ordinary citizen is to perceive s. 8 of
the Charter as protecting him from unreasonable search and
seizure, then the position taken by some courts that the Crown
can retain materials seized on a defective search warrant must
be clarified. Otherwise, the ordinary citizen will not doubt
wonder how the police can act illegally towards him on the one
hand, but still use the evidence they gather against him despite
illegal search on the other.
In my opinion, now that the Charter of Rights is in place the
courts should not ignore its clear language and allow illegally
seized documents to be retained by the Crown even in circum
stances where the documents seized have already been tendered
as evidence at a preliminary hearing of a charge against the
accused. The rights of an accused must not be given away just
to make it easier for the Crown to prosecute an accused person.
Or, as Boilard J. stated more concisely in Tru-
deau, at page 349:
In light of s. 24 of the Charter, I think that the only effective
recourse is that once a seizure is found to be unlawful, to order
the return of the objects seized to their lawful possessor.
Proponents of the view that the Crown may
retain any documents it may need, on the other
hand, favour a less drastic and much more moder
ate interpretation, leaving it up to the judge pre-
siding at the trial or hearing an application under
subsection 24(1) to assess the surrounding
circumstances. 6
In the case at bar counsel for the applicants
made his motion under subsection 24(1) of the
Charter. He applied to the Federal Court first to
seek redress under the Charter for an injury
caused to his clients. He asked that the court
consider it appropriate and just, in the circum
stances, to order that the photocopies of docu
ments illegally obtained be returned and to prohib
it the respondents from using any information they
had obtained therefrom. Counsel for the applicants
thus urged that this matter be dealt with strictly
under subsection 24(1), in other words, without
analyzing, pursuant to subsection 24(2), whether
the admission of these documents would "bring the
administration of justice into disrepute". Once
again, we are not being asked to rule that a
document is inadmissible in a trial before another
court, but to grant a form of declaratory judgment
which has the same effect.
For this purpose we must analyze the circum
stances in which the applicants' right was
infringed and, if they are considered sufficiently
serious, grant an appropriate and just remedy. As
stated at the outset, the parties agreed that the
searches and the seizure were conducted properly
and the admission of illegality on the part of the
respondents was made only because of the
Supreme Court's decision in the Southam Inc.
case. It should be pointed out, however, that at the
time the seizure was authorized, in August 1982,
the Charter was already in force (April 17, 1982),
but the Supreme Court's decision in Southam Inc.
had not yet been rendered (September 1984) and
the investigators acted in accordance with the law
then in effect, under a provision duly enacted by
Parliament.
Except for the decision rendered by the
Supreme Court, no special circumstances were
thus established by the applicants; they also
argued that the respondents, who are officers of
the Crown, should have known that the Alberta
Court of Appeal had held, in January 1983, that
6 R. v. Rao (1984), 4 O.A.C. 162; 46 O.R. (2d) 80; 40 C.R.
(3d) 1; 12 C.C.C. (3d) 97; Backwoods Beverages, supra;
Henry Caller Inc., supra.
subsections 10(1) and 10(3) of the Act were
incompatible with section 8 of the Charter. This
argument cannot be accepted, since they would
then have had to assume what the Supreme
Court's decision would be. Even admitting the
seriousness of certain circumstances, however,
would it be appropriate and just, by way of
remedy, to exclude the evidence thus gathered? It
is obvious that prohibiting the Crown from using it
would amount to prohibiting the Crown from pre
senting legally obtained evidence in a criminal
proceeding, and this is contrary to the principles of
law.
Consequently, without even considering subsec
tion 24(2) of the Charter, it seems to me that the
applicants have not established any special circum
stances such as would justify my granting the
relief sought on the mere fact that the Supreme
Court recently decided that such an authorization,
search and seizure were unreasonable.
When called upon to decide a similar problem,
where the seizure had been made before the
Charter came into force, however, Dubé J. stated
the following in Jim Pattison Industries Ltd. v.
The Queen, [1984] 2 F.C. 954 (T.D.) [at pages
960 and 961]:
The plaintiffs in the case at bar insist, of course, that the
question to be resolved here is not the admissibility of evidence
but the authority of the defendant to use the information and
facts recorded in admissible documents, an invasion of privacy,
thus a question within the exclusive jurisdiction of the Federal
Court.
I agree that this Court has the competence to make the
declaration prayed for by the plaintiffs. Nevertheless, any court
is reluctant to make a declaration that would impinge directly
on the course of a proceeding in a criminal matter before
another court. It is agreed in the present case that, following a
preliminary inquiry, the plaintiffs were committed to stand trial
before the Supreme Court of Ontario, which trial is to com
mence on February 11, 1985. Copies of the seized documents
were filed at the preliminary inquiry and were made available
by Crown counsel at that time to the presiding Judge, to
counsel and to the court reporter.
The respondents' affidavit to the effect that they
need the evidence gathered for a charge already
laid against the applicants justifies the Court in
dismissing this motion. It will be up to the judge of
the Court of Sessions of the Peace to determine
whether the evidence thus obtained "would bring
the administration of justice into disrepute".
Consequently, the Court declares the searches
and seizures made on August 25 and 26, 1982 at
the applicants' places of business to be illegal, null
and void, unreasonable and in violation of section
8 of the Canadian Charter of Rights and Free
doms, and orders that the extracts from and
photocopies of all the documents seized at the time
be returned except those necessary for the criminal
prosecution, namely the 49 documents appearing
in Appendix E of the affidavit of the respondent
André Brantz. Costs against the applicants.
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.