Southam Inc. v. Hunter (1984), 55 A.R. 291 (SCC)
MLB headnote and full text
Southam Inc. v. Hunter (Director of Investigation and Research of the Combines Investigation Branch), Milton, Murphy, McAlpine and Marrocco
(17569)
Indexed As: Southam Inc. v. Hunter
Supreme Court of Canada
Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.
September 17, 1984.
Summary:
Under s. 10 of the Combines Investigation Act the Director of Investigation and Research of the Combines Investigation Branch authorized a search of the offices of Southam Inc.’s Edmonton Journal. As the search proceeded and some material was seized, Southam Inc. brought an action against the Director and his authorized searchers for damages for unreasonable search and seizure, an order returning all seized material and an interim and permanent injunction against further search and seizure. Southam Inc. claimed that s. 10 of the Combines Investigation Act was void and unenforceable as being contrary to s. 8 of the Canadian Charter of Rights and Freedoms, which guaranteed the right to be secure against unreasonable search and seizure.
The Alberta Court of Queen’s Bench in a judgment reported 42 A.R. 109 refused an interim injunction pending determination of the Charter issue on the ground that the balance of convenience would be better served by permitting the search to continue. Southam Inc. appealed.
The Alberta Court of Appeal in a judgment reported 42 A.R. 108 dismissed the appeal and refused an interim injunction, but ordered that seized material be sealed and left with the court pending determination of the Charter issue by the Court of Appeal.
Subsequently, the Alberta Court of Appeal in a judgment reported 42 A.R. 93 ruled that s. 10 of the Combines Investigation Act was inconsistent with s. 8 of the Charter. The Director appealed.
The Supreme Court of Canada dismissed the appeal and affirmed that s. 10 of the Combines Investigation Act was inconsistent with s. 8 of the Charter and was of no force or effect.
Civil Rights – Topic 1606
Property – Search warrants – Who should authorize – The Supreme Court of Canada held that searches under s. 10 of the Combines Investigation Act should be authorized by someone capable of acting judicially – The court held that neither the Director of Investigation and Research of the Combines Investigation Branch nor a member of the Restrictive Trade Practices Commission with their administrative and investigative functions had the ability to act judicially for the purpose of authorizing searches – See paragraphs 31 to 36.
Civil Rights – Topic 1607
Property – Search warrants – Standard for authorization – The Supreme Court of Canada held that in determining whether a search under s. 10 of the Combines Investigation Act should be authorized the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state must be found – The court held that for an authorization to issue there must be reasonable grounds to believe that there is evidence of an offence in the place to be searched – See paragraphs 37 to 43.
Civil Rights – Topic 1641
Property – Search and seizure – General – The Supreme Court of Canada in establishing criteria for assessing the reasonableness of the impact of a search or of a statute authorizing a search stated that the purpose of s. 8 of the Canadian Charter of Rights and Freedoms was at least to protect the right of privacy and that it was not restricted to the protection of property or associated with the law of trespass – The court stated that in each case the balance must be assessed between the public’s interest in being left alone and the government’s interest in advancing its goals, notably law enforcement – See paragraphs 20 to 26.
Civil Rights – Topic 1646
Property – Search and seizure – Unreasonable search and seizure – Defined – S. 10 of the Combines Investigation Act, R.S.C. 1970, c. C-23, authorized wide-ranging searches by the Director of Investigation and Research of the Combines Investigation Branch upon obtaining an authorization ex parte from a member of the Restrictive Trade Practices Commission – The Supreme Court of Canada held that s. 10 was inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms, because it failed to require searches to be authorized in advance by a person capable of acting judicially and failed to require that there be reasonable grounds to believe that there is evidence of an offence in the place to be searched – The court held that searches are prima facie unreasonable without a warrant – See paragraphs 27 to 43.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law – Charter, s. 1 – The Supreme Court of Canada held that the onus is on the person seeking to limit a right or freedom set out in the Charter to show that the limitation is justified – See paragraphs 45 to 46.
Civil Rights – Topic 8461
Canadian Charter of Rights and Freedoms – Interpretation – General – The Supreme Court of Canada held that the Canadian Charter of Rights and Freedoms is a part of the constitution and not a mere statute – Accordingly, it must be capable of growth and development over time to meet new social, political and historical realities – It must be given a large and liberal interpretation according to its purpose, which is to guarantee and to protect the enjoyment of the rights and freedoms it enshrines – See paragraphs 16 to 18.
Civil Rights – Topic 8465
Canadian Charter of Rights and Freedoms – Interpretation – Rules of statutory interpretation – Application of – The Supreme Court of Canada stated that the interpretation of the Charter as a constitutional document was different from that of construing a statute, so that the rules of statutory construction were inapplicable – See paragraphs 16 to 18.
Cases Noticed:
Jabour v. Law Society of B.C., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 9].
Petrofina Canada Ltd. v. Chairman, Restrictive Trade Practices Commission No. 2, [1980] 2 F.C. 386; 26 N.R. 536, consd. [paras. 12, 38].
Edwards v. Attorney General for Canada, [1930] A.C. 124, appld. [para. 17].
Minister of Home Affairs v. Fisher, [1980] A.C. 319, appld. [para. 18].
M’Culloch v. Maryland (1819), 17 U.S. (4 Wheat.) 316, appld. [para. 18].
Entick v. Carrington (1765), 19 State Tr. 1029, consd. [para. 21].
Katz v. United States (1967), 389 U.S. 347; 88 S. Ct. 507; 19 L. Ed.(2d) 576, consd. [para. 23].
U.S. v. Rabinowitz (1950), 339 U.S. 56, consd. [para. 30].
I.R.C. v. Rossminster, [1980] 1 All E.R. 80, consd. [para. 32].
Coopers and Lybrand v. M.N.R., [1979] 1 S.C.R. 495; 24 N.R. 163, consd. [para. 33].
MacKay v. R., [1965] S.C.R. 798, consd. [para. 44].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, sect. 1 [para. 45]; sect. 8 [para. 5].
Combines Investigation Act, R.S.C. 1970, c. C-23, sect. 10(1), sect. 10(3) [para. 2].
Constitution Act, 1982, sect. 52(1) [para. 1].
Counsel:
Eric A. Bowie, Q.C., and Ingrid C. Hutton, Q.C., for the appellants;
A.H. Lefever and F.S. Kozak, for the respondent.
This case was heard on November 22 and 23, 1983, at Ottawa, Ontario, before Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ., of the Supreme Court of Canada.
On September 17, 1984, Dickson, J., delivered the following judgment for the Supreme Court of Canada. Laskin, C.J.C., took no part in the judgment.
