Her Majesty the Queen v. Hurrell; the Attorney General of Canada, Intervenor [Indexed as: R. v. Hurrell]

60 O.R. (3d) 161

[2002] O.J. No. 2819

Docket No. C36968

Court of Appeal for Ontario,

Moldaver, Cronk and Gillese JJ.A.

July 19, 2002

• Application for leave to appeal to the Supreme Court of Canada was granted February 20, 2003 (Gonthier, Major and Arbour JJ.). S.C.C. File No. 29376. S.C.C. Bulletin, 2003, p. 288.

Criminal law -- Search and seizure -- Weapons search -- Minimum constitutional standards -- Section 117.04(1) of Criminal Code violates s. 8 of Charter -- Search provision requires neither that police officer have reasonable grounds to believe that weapons likely to be found on person or premises to be searched nor that such grounds be presented to or accepted by issuing justice -- Violation not justified by s. 1 of Charter -- Section 117.04(1) is declared of no force or effect -- Declaration of invalidity suspended for six months -- Canadian Charter of Rights and Freedoms, ss. 1, 8 -- Criminal Code, R.S.C. 1985, c. C-46, s. 117.04(1)

Charter of Rights and Freedoms -- Search and seizure -- Weapons search -- Minimum constitutional standards -- Section 117.04(1) of Criminal Code violates section 8 of Charter -- Search provision requires neither that police officer have reasonable grounds to believe that weapons likely to be found on person or premises to be searched nor that such grounds be presented to or accepted by issuing justice -- Violation not justified by s. 1 of Charter -- Section 117.04(1) is declared of no force or effect -- Declaration of invalidity suspended for six months -- Canadian Charter of Rights and Freedoms, ss. 1, 8 -- Criminal Code, R.S.C. 1985, c. C-46, s. 117.04(1)

A police officer attended before a justice of the peace and applied for a warrant under s. 117.04(1) of the Criminal Code to search the appellant's residence. The application was accompanied by an unsworn "affidavit". A search warrant was issued and the police seized firearms, ammunition and other weapons from the appellant's house. The appellant brought an application for a declaration pursuant to s. 52(1) of the Constitution Act, 1982 that s. 117.04(1) of the Code is of no force or effect because it violates the right to be free from unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms and for an order quashing the search warrant. The appellant advanced a number of arguments in support of his s. 8 argument, but the application judge dealt with only one of them, namely that s. 117.04(1) violates s. 8 because there is no requirement that the issuing justice be satisfied upon information on oath that the prerequisites for issuance of the s. 117.04(1) search warrant have been met. The application judge concluded that s. 117.04(1) did not violate s. 8 of the Charter. The appellant appealed.

Held, the appeal should be allowed.

Section 117.04(1) violates s. 8 of the Charter as it contains no requirement that the peace officer seeking the warrant have reasonable grounds to believe that weapons or other dangerous items referred to in the provision are likely to be found on the person or premises to be searched and no requirement that such grounds be presented to and accepted by the issuing justice. The missing requirements are not implicit in the provision. It is not at all clear that Parliament intended the missing requirements to form part of s. 117.04(1). The situation was too cloudy to invoke the "necessarily implicit" principle of statutory interpretation. [page162]

The deficiency could not be cured under s. 1 of the Charter. While the purpose of s. 117.04(1) is pressing and substantial, namely the prevention of serious injury or death resulting from the use of firearms or other dangerous objects, the provision suffers from overbreadth. It allows for wholesale fishing expeditions in which the police are permitted to invade an individual's privacy in circumstances where they may have no reason to even suspect, let alone believe, that the person has any weapons or other dangerous items in his or her possession.

This is not one of the clearest of cases where the legislative objective and the means chosen to attain it are so obvious and unequivocal that the court should read in the requirements to remedy constitutional defects of the statute. To do so in this case would not constitute an acceptable intrusion into the legislative domain. Section 117.04(1) is of no force or effect. The declaration of invalidity should be suspended for six months to give Parliament the opportunity to bring the legislation into conformity with its constitutional obligations. Any warrants issued during that period should comply with the proposed draft legislation that incorporates constitutional requirements.

APPEAL from a judgment of McGarry J., [2001] O.J. No. 3449 dismissing an application for a declaration that s. 117.04(1) of Criminal Code, R.S.C. 1985, c. C-46 violates s. 8 of the Canadian Charter of Rights and Freedoms.

R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, 53 O.R. (2d) 719n, 14 O.A.C. 335, 26 D.L.R. (4th) 200, 65 N.R. 87, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1; Schachter v. R., 1992 74 (SCC), [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, 139 N.R. 1, 10 C.R.R. (2d) 1, 92 C.L.L.C. Â14,036 (sub nom. Schachter v. Canada), apld Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 33 Alta. L.R. (2d) 193, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, 9 C.R.R. 355, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97 (sub nom. Southam Inc. v. Director of Investigation and Research of Combines Investigations Branch); R. v. Beierback (1996), 1996 ABCA 298, 39 C.R.R. (2d) 97 (Alta. C.A.); R. v. Budreo (2000), 2000 5628 (ON CA), 46 O.R. (3d) 481, 183 D.L.R. (4th) 519, 70 C.R.R. (2d) 203, 142 C.C.C. (3d) 225, 32 C.R. (5th) 127 (C.A.), affg (1996), 1996 11800 (ON SC), 27 O.R. (3d) 347, 34 C.R.R. (2d) 16, 104 C.C.C. (3d) 245, 45 C.R. (4th) 133 (Gen. Div.); R. v. King's Crew Motorcycle Gang (1989), 1989 ABCA 261, 79 Alta. L.R. (2d) 307, 51 C.C.C. (3d) 311, 72 C.R. (3d) 364 (C.A.), revg (1988) 1988 3497 (AB KB), 61 Alta. L.R. (2d) 125 (Q.B.) (sub nom. R. v. Conrad); Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193, 241 N.R. 1, 63 C.R.R. (2d) 189, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, consd Other cases referred to Colet v. R., 1981 11 (SCC), [1981] 1 S.C.R. 2, 119 D.L.R. (3d) 521, 35 N.R. 227, [1981] 2 W.W.R. 472, 57 C.C.C. (2d) 105, 19 C.R. (3d) 84; French Estate v. Ontario (Attorney General) (1998), 1998 1771 (ON CA), 38 O.R. (3d) 347, 157 D.L.R. (4th) 144, 50 C.R.R. (2d) 149, 122 C.C.C. (3d) 449, 22 C.P.C. (4th) 77 (C.A.) [Leave to appeal to S.C.C. refused (1999), 239 N.R. 394n], affg (1996), 1996 8289 (ON SC), 134 D.L.R. (4th) 587, 36 C.R.R. (2d) 168, 106 C.C.C. (3d) 193 (Ont. Gen. Div.); Kourtessis v. M.N.R., 1993 137 (SCC), [1993] 2 S.C.R. 53, 78 B.C.L.R. (2d) 257, 102 D.L.R. (4th) 456, 153 N.R. 1, [1993] 4 W.W.R. 225, 14 C.R.R. (2d) 193, 81 C.C.C. (3d) 286, 20 C.R. (4th) 104, 93 D.T.C. 5137 (sub nom. Canada v. Baron); R. v. Corbeil (1986), 1986 4650 (ON CA), 13 O.A.C. 382, 24 C.R.R. 174, 27 C.C.C. (3d) 245 (C.A.); R. v. McDonough (1988), 1988 7066 (ON SC), 40 C.R.R. 151, 44 C.C.C. (3d) 370, 65 C.R. (3d) 245 (Ont. Dist. Ct.); R. v. Multitech Warehouse Direct (Ontario) Inc. (1989), 1989 7154 (ON CA), 35 O.A.C. 349, 52 C.C.C. (3d) 175 (C.A.); R. v. Print Three Inc. (1985), 1985 2073 (ON CA), 51 O.R. (2d) 321, 10 O.A.C. 220, 20 D.L.R. (4th) 586, 16 C.R.R. 187, 20 C.C.C. (3d) 392, 47 C.R. (3d) 91, 85 D.T.C. 5303 (C.A.), revg (1985), 1985 6221 (ON SC), 15 C.R.R. 152, 85 D.T.C. 5177 (Ont. S.C.); R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 47 O.A.C. 81, 125 N.R. 1, 3 C.R.R. (2d) 1, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154, 4 O.R. (3d) 799n, 49 O.A.C. 161, 84 D.L.R. (4th) 161, 130 N.R. 1, 7 C.R.R. (2d) 36, 67 C.C.C. (3d) 193, 38 C.P.R. (3d) 451, 8 C.R. (4th) 145; [page163] Reference re Criminal Code, Sections 193 & 195.1(1)(c), 1990 105 (SCC), [1990] 1 S.C.R. 1123, 68 Man. R. (2d) 1, 109 N.R. 81, [1990] 4 W.W.R. 481, 48 C.R.R. 1, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1; Reference re: Firearms Act (Canada), 2000 SCC 31, [2000] 1 S.C.R. 783, 82 Alta. L.R. (3d) 1, 185 D.L.R. (4th) 577, 254 N.R. 201, [2000] 10 W.W.R. 1, 144 C.C.C. (3d) 385, 34 C.R. (5th) 1 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 8 Constitution Act, 1982, s. 52 Criminal Code, R.S.C. 1970, c. C-34, s. 101(1), 105(1) Criminal Code, R.S.C. 1985, c. C-46, s. 99(1), 111, 117.04(1), 117.05(1), 487(1), 487.01(1), 487.05(1), 487.1(1), 672.54, 810.1 Firearms Act, S.C. 1995, c. 39, s. 5 Income Tax Act, S.C. 1970-71-72, c. 63, s. 231(4), (5) Rules and regulations referred to Rules of the Ontario Court of Justice in Criminal Proceedings, SI/97-133, rules 2.02, 6 Authorities referred to Canada, Firearms Control and Domestic Violence (Ottawa: Communications and Consultation Branch, Department of Justice of Canada, 1995) Gabor, T."The Impact of the Availability of Firearms on Violent Crimes, Suicide, and Accidental Death: A Review of the Literature with Special Reference to Canadian Situation" (Working Paper, 1994) House of Commons Debates, Vol. 133, No. 154 (16 February 1995) at 9708-09 (A. Rock)

William M. Trudell and Adam Steven Boni, for appellant. Brian E. McNeely, for respondent. John W. North, for intervenor.

The judgment of the court was delivered by

[1] MOLDAVER J.A.: -- The appellant, Kenneth Hurrell, appeals from the order of McGarry J. dated August 14, 2001 dismissing his application for various items of relief including a declaration that s. 117.04(1) of the Criminal Code, R.S.C. 1985, c. C-46, as amended, violates s. 8 of the Canadian Charter of Rights and Freedoms and is of no force and effect.

[2] The impugned provision reads as follows:

117.04 (1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess any weapon, [page164] prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

[3] For reasons that follow, I am respectfully of the view that s. 117.04(1) is unconstitutional and that McGarry J. erred in failing to declare it invalid. I believe that s. 117.04(1) violates s. 8 of the Charter because it contains no requirement that the peace officer seeking the warrant have reasonable grounds to believe that weapons or the other dangerous items mentioned in the provision are likely to be found on the person or premises to be searched [^1] and no requirement that such grounds be presented to and accepted by the issuing justice. These gaps, in my view, are serious because in its present form, s. 117.04(1) allows for sweeping searches of persons and private premises in circumstances where the police may have no reason to suspect, let alone believe, that the person of concern has any weapons or other dangerous items in his or her possession.

Background Facts

[4] The appellant resides at 1788 Gainsborough Road in London, Ontario. On February 2, 2000, Police Constable Matatall of the London Police Service attended before Justice of the Peace Trachy and applied for a search warrant under s. 117.04(1) of the Code. The application was accompanied by a six-page statement entitled "Affidavit". The so-called "affidavit" appears to have been signed by Constable Matatall, but this cannot be verified because it is unsworn. For present purposes, it is unnecessary to detail the contents of the Constable's statement. Suffice it to say that it contains information designed to satisfy a justice that a s. 117.04(1) warrant should be issued in relation to the appellant's residence.

[5] Based on this information, Justice of the Peace Trachy issued a warrant to search the appellant's residence and on February 2, 2000, the police entered his home and seized a large number of items, including 12 firearms, two cross-bows, 11 containers of assorted ammunition and a firearms acquisition certificate in the appellant's name.

[6] On February 8, 2000, Constable Matatall made a return of the items and applied to the issuing justice under s. 117.05(1) of [page165] the Code [^2] for an order for their disposition. At the same time, she applied under s. 111(1) of the Code [^3] for an order prohibiting the appellant from possessing any firearms and other items specified in that provision. The hearings contemplated by those provisions have not yet taken place. They await the determination of this appeal.

Proceedings Before McGarry J.

[7] By notice of application dated January 16, 2001, the appellant commenced an application in the Superior Court of Justice at London, Ontario seeking the remedies specified below:

(1) A declaration pursuant to s. 52(1) of the Constitution Act, 1982 that s. 117.04(1) of the Criminal Code is of no force and effect because it violates the right to be free from unreasonable search and seizure under s. 8 of the Charter and cannot be saved under s. 1 of the Charter.

(2) An order quashing the search warrant issued by Justice of the Peace Trachy under s. 117.04(1) authorizing a search and seizure at the appellant's residence.

(3) An order requiring the London Police Service to return forthwith to the appellant all of the items seized from his residence pursuant to the warrant. [page166]

[8] At the hearing, which took place before McGarry J. on April 12, 2001, the appellant raised four arguments in support of his position that s. 117.04(1) of the Code violates s. 8 of the Charter and should be declared unconstitutional. Those arguments are also raised in this court:

I. There is no requirement in s. 117.04(1) of the Code that the issuing justice must be satisfied upon information on oath that the prerequisites for issuance of the s. 117.04(1) search warrant have been met.

II. The standard for issuing a s. 117.04(1) warrant is overbroad and amounts to an unacceptable dilution of the minimum constitutional standards established in Hunter v. Southam Inc., [1984 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641] and its progeny for a reasonable search of a dwelling- house.

III. Section 117.04(1) does not require that the issuing justice be satisfied that there are reasonable grounds to believe that the weapons, ammunition and/or certificates in question will be found at the place to be searched.

IV. Section 117.04 does not specifically empower the police to enter the dwelling-house, building, receptacle or place to be searched.

[9] In his written decision dismissing the application, McGarry J. dealt only with the first of these issues, namely, the missing oath requirement. He observed that s. 117.04(1) contemplates an "application" to a justice by the peace officer seeking the warrant and then he continued as follows:

Given that the Criminal Code does not define the term "application", the procedural authority of the Rules of Criminal Proceedings [hereinafter Rules] applies to define the term. Since the Criminal Code in s. 2 defines a "justice" who can issue a warrant under s. 117.04 as "a justice of the peace or a provincial court judge", the section of the Rules that must be applied is that of the Ontario Court of Justice. However, I note that the wording of the relevant rule is identical to its counterpart in the part of the Rules regarding the Superior Court of Justice. The relevant rule is Rule 6 of the Ontario Court of Justice Rules concerning applications. Particularly, R. 6.01 states:

(1) Where the Code or other federal enactment to which the procedural provisions of the Code apply, authorizes, permits or requires that an application or motion be made to or an order or determination made by a judge, other than a judge presiding at preliminary inquiry or trial, the application shall be commenced by a Notice of Application in Form 1.

(2) Rules 6.01 to 6.14 apply to all proceedings commenced by a Notice of Application, except where otherwise expressly provided by these rules or as otherwise ordered by a judge of the court in accordance with rule 2.02. [page167]

This rule provision would make Rule 6 the source for defining the term "application" in section 117.04. Within the procedures described in Rule 6, specifically under R. 6.11(1), the applicant must give evidence by affidavit. As well, under R. 6.12, a witness may give viva voce evidence during the hearing. Both these evidentiary requirements meet the standard of requiring information on oath as stipulated in Hunter. These requirements would defuse the argument by the defence that the process for issuing a search warrant does not require sworn information.

[10] Having identified Rule 6 of the Rules of the Ontario Court of Justice in Criminal Proceedings, SI/97-133 as the source for defining the term "application", McGarry J. recognized that compliance with the Rule's notice requirement (at least 15 days' notice prior to applying to the court unless otherwise ordered by a judge under rule 2.02) would "defy the purpose of seeking a search warrant" and "negate [its] effectiveness". Accordingly, he suggested the following solution:

To prevent such a process [of giving notice], peace officers would have to apply at the beginning of the application under R. 6.01(2) for non-application of the rule regarding notice citing Rule 2.02 which states that "[t]he court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time". The officers would have to argue that the purpose of the warrant, that is dispossessing a weapon from a person for the safety of the community, is in the interests of justice. Such a procedural requirement would be the only way that would make the section 117.04 constitutionally valid while upholding the purpose and effectiveness of seeking a search warrant. Given that there exists an underlying principle of statutory interpretation that a court should, if given an interpretive choice, uphold rather than strike down legislation concerning the Charter, I find this interpretation is to be given effect to the section in issue.

[11] Having determined that a valid warrant under s. 117.04(1) must be based upon information on oath, McGarry J. did not go on to consider the remaining issues raised by the appellant. Although he provided no reason for this, perhaps he felt that it was unnecessary given his understanding that the warrant authorizing the search of the appellant's residence had been issued on the basis of unsworn information.

Preliminary Issues

[12] Before considering the constitutional arguments raised by the appellant, there are two preliminary issues that must be addressed.

[13] First, the Attorneys General submit that the appellant has no standing to bring the constitutional challenge because he "has failed to establish that he was exceptionally prejudiced by the operation of s. 117.04(1)". The argument, as I understand it, is that if the appellant is correct in his submission that a warrant issued under s. 117.04(1) must be based upon information on [page168] oath, then considering that the warrant authorizing the search of his residence was not based upon information on oath, he has no standing to challenge the constitutionality of s. 117.04(1) since the warrant used to search his premises was obviously not issued in accordance with that provision.

[14] With respect, I see no merit in this argument. The record is clear that the police applied under s. 117.04(1) for a warrant to search the appellant's residence and that Justice of the Peace Trachy purported to act under that provision when he issued the warrant authorizing the police to search the appellant's residence.

[15] The appellant seeks to attack the constitutionality of the provision under which the police and the issuing justice purported to act in issuing the warrant to search his premises. In my view, he is entitled to do so. If s. 117.04(1) is found to be unconstitutional, then any warrant issued under it necessarily will be invalid. If, on the other hand, the section is found to be constitutional and the issuing justice simply failed to comply with its requirements, then the warrant may still be invalid, albeit for different reasons. While the latter scenario is a possibility, it is not the only possibility and it certainly does not foreclose the appellant from attacking the constitutionality of s. 117.04(1) on the ground that he lacks standing.

[16] Second, the Attorneys General submit that the prerogative and declaratory relief sought by the appellant is discretionary and that, in general, these extraordinary remedies should be restricted to special circumstances where no other remedy is available: see R. v. Corbeil (1986), 1986 4650 (ON CA), 27 C.C.C. (3d) 245 at pp. 254-55, 24 C.R.R. 174 (Ont. C.A.); Kourtessis v. M.N.R., 1993 137 (SCC), [1993] 2 S.C.R. 53 at p. 86, 81 C.C.C. (3d) 286 at p. 306 and R. v. Multitech Warehouse Direct (Ontario) Inc. (1989), 1989 7154 (ON CA), 52 C.C.C. (3d) 175 at pp. 183-84, 35 O.A.C. 349 (C.A.).

[17] In this case, the Attorneys General submit that the appellant had another remedy available to him. In particular, they maintain that the issues raised by the appellant, including the constitutionality of s. 117.04(1), could properly be decided by the issuing justice at the disposition hearing contemplated by s. 117.05(1) of the Code.

[18] The appellant, on the other hand, argues that a justice presiding over a s. 117.05(1) disposition hearing has no jurisdiction under s. 52(1) of the Constitution Act, 1982, to declare s. 117.04(1) unconstitutional on the ground that it violates s. 8 of the Charter. Accordingly, he submits that the Superior Court was the only forum capable of granting the relief sought.

[19] Although I am inclined to the view that a justice presiding over a s. 117.05(1) hearing does have the authority to decide [page169] whether the provision which prompts the disposition proceeding is constitutional, I need not finally determine that issue on this appeal.

[20] In the circumstances of this case, s. 117.05(1) mandates that the disposition hearing be conducted by the issuing justice. That presents a problem here in view of the issue raised by the appellant that s. 117.04(1) is unconstitutional because it allows the issuing justice to act on unsworn evidence. Given that the warrant in question was apparently issued on the basis of unsworn evidence and given the position of the Attorneys General that s. 117.04(1), as framed, requires the justice to be satisfied upon evidence on oath, it is at least arguable that the issuing justice may himself have occasioned a Charter breach. Expressed somewhat differently, it would be unseemly to call upon the issuing justice to decide a matter that could, depending on his conclusion, implicate him in a breach of the appellant's s. 8 Charter rights.

[21] Accordingly, in the unique circumstances of this case, I am satisfied that the appellant was entitled to apply to the Superior Court of Justice for the relief sought. It follows that he should be permitted to pursue his appeal in this court.

Analysis of the Appellant's Constitutional Arguments

I. The missing oath requirement

[22] In light of Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97, it is common ground that, to be valid, a warrant issued under s. 117.04(1) must be based upon information on oath. It is also accepted that whereas other provisions of the Criminal Code dealing with search and seizure [^4] contain the specific words "information on oath", s. 117.04(1) does not. It does, however, use the words "pursuant to an application" and it further requires the issuing justice to be "satisfied" that there are "reasonable grounds to believe" that it is not desirable in the interests of the safety of any person for the person of concern to possess weapons or other items specified in the provision.

[23] The Attorneys General submit that the words "application""satisfy" and "reasonable grounds to believe" have special meaning to the judiciary and, in the context of s. 117.04(1), they connote a requirement that the issuing justice may only act on sworn information. Support for this submission is found in [page170] R. v. King's Crew Motorcycle Gang (1988), 1988 3497 (AB KB), 61 Alta. L.R. (2d) 125 (Q.B.); revd on other grounds and indexed as R. v. Conrad (1989), 1989 7105 (AB CA), 51 C.C.C. (3d) 311, 72 C.R. (3d) 364 (Alta. C.A.). At issue in that case was the validity of several search warrants issued under former s. 101(1) of the Code [^5] (a predecessor of s. 117.04(1)) which provided as follows:

101(1) Where, on application to a provincial court judge made by or on behalf of the Attorney General with respect to any person, the provincial court judge is satisfied that there are reasonable grounds for believing that it is not desirable in the interests of the safety of that person, or of any other person, that that person should have in his possession, custody or control any firearm or other offensive weapon or any ammunition or explosive substance, the provincial court judge may issue a warrant authorizing the search for and seizure of any firearm or other offensive weapon or any ammunition or explosive substance in the possession, custody or control of that person.

[24] One of the issues raised, although not in the form of a constitutional challenge, was whether the impugned searches were unreasonable because s. 101 did not require that the information in support of a warrant be on oath. Sulatycky J. disposed of this argument as follows at pp. 143-44 Alta. L.R.:

It is true that s. 101(1) does not require, as required . . . for an ordinary search warrant, an information upon oath. It does require that an application be made to a Provincial Judge who must be satisfied that there are reasonable grounds for a certain belief.

The term "application" has a meaning that is understood by the judiciary and the words "requiring the provincial court judge to be satisfied" import certain requirements. To be satisfied on an application means to be satisfied on evidence within the application and evidence is only evidence if it is under oath.

When I test it [s. 101(1)] against the requirements of the Charter, there is nothing inconsistent in it with the Charter. It does not set out a procedure that is unreasonable. It sets out a procedure that requires the Provincial Judge to act judicially, to consider the evidence to determine if there are reasonable grounds for a belief held by a peace officer or the applicant. And the requirement that this be in the form of an application and that the Provincial Judge be satisfied read together clearly imports that the Provincial Judge hear evidence and that can only be material that is under oath.

(Emphasis added)

[25] I agree with this analysis. It makes sense, it does not offend the rules of statutory interpretation and it respects the interpretive presumption of constitutionality. In so concluding, I recognize that on occasion, in the context of search and seizure [page171] legislation, Parliament has used the words "information on oath" in addition to the words "application""satisfy" and "reasonable grounds to believe". (See, for example, s. 487.05(1) of the Code.) I do not, however, take this to mean that Parliament intended that a justice could issue a warrant under s. 117.04(1) on the basis of unsworn information. Rather, I believe that out of an abundance of caution, Parliament chose in enacting s. 487.05(1) to make explicit that which is necessarily implicit in s. 117.04(1). Accordingly, I would not give effect to the appellant's first submission.

[26] Before leaving this issue, I should point out that in my respectful view, the approach taken by McGarry J. in importing Rule 6 of the Rules of the Ontario Court of Justice is incorrect and should not be followed. In this regard, I adopt the following written submission of the Attorney General for Ontario:

Such reasoning necessarily implies that, if other provinces lack a Rule 6, or if that rule is repealed in Ontario, then the meaning of section 117.04(1) changes. This, it is respectfully submitted, is not correct. The wholesale application of Rule 6 to section 117.04(1) applications, moreover, imports inter partes procedures (notices, cross- examinations, facta) which are clearly inappropriate to an application for a public safety warrant.

II. The standard for issuing a s. 117.04(1) warrant

[27] Under s. 117.04(1), the issuing justice may authorize a warrant if satisfied "that there are reasonable grounds to believe that it is not desirable" in the interests of public safety for the person of concern to possess a weapon or other item referred to in the provision. The appellant takes issue with this standard for two reasons.

[28] First, he submits that it amounts to a substantial dilution and an unacceptable constitutional departure from the standard required by Hunter v. Southam, namely: reasonable grounds to believe that an offence has been or is being committed. The appellant maintains that s. 117.04(1) is offensive because it permits "entry into the highly protective sphere of a dwelling house . . . in circumstances where there may be absolutely no evidence to ground a reasonable belief that actual harm, much less a criminal offence of any kind, will ever be caused or committed". The appellant thus contends that s. 117.04(1) establishes a deficient standard for issuing a warrant.

[29] Second, the appellant submits that the section is unconstitutionally vague because it uses the words "not desirable" in the interests of public safety. According to the appellant"the criteria of 'desirable' injects a subjectivity into the issuance process that vests police and issuing justices with far too much discretion in deciding when to invade an individual's reasonable expectation of privacy." [page172]

[30] For reasons that follow, I would not give effect to either of those arguments.

[31] The deficient standard argument fails, in my view, because it is contextually insensitive and disregards the nature and purpose of the impugned provision. Section 117.04(1) is not offence-based legislation. It does not involve a search for evidence designed to show that a criminal offence has been or is being committed, nor does it place the liberty interest of the subject at risk. Rather, s. 117.04(1) is preventative in nature. Its primary purpose is the prevention of serious injury and death resulting from the use of firearms and other dangerous objects.

[32] To be sure, criminal conduct is one of the chief contributors to the type of harm envisaged by the provision. Tragically, in the realm of domestic violence, the use of firearms has skyrocketed. The Honourable Allan Rock, Minister of Justice at the time, recognized this in a 1995 address to Parliament concerning the issue of firearms registration:

Statistics demonstrate that every six days a woman is shot to death in Canada, almost always in her home, almost always by someone she knows, almost always with a legally owned rifle or shotgun. This is not a street criminal with a smuggled handgun at the corner store. This is an acquaintance, a spouse or a friend in the home. [^6]

[33] In the same speech, the Minister made it clear that Parliament's concern about the harm caused by firearms was not limited to criminal conduct:

Suicides and accidents provide another example. Last year, of the 1,400 people who died by firearms in Canada, 1,100 were suicides. I know there are those who say that suicide by its nature will result in death no matter what controls are in place if the person is determined to take his or her life. No doubt that point has some force. However, too many of those suicides were by young people acting in a moment of anguish, acting impulsively because of a failed relationship, difficulty in the home or problems at school.

If a firearm is not readily available, lives can be saved. . . . In the years since 1970, some 470 children have died in Canada as a result of accidents with firearms. [^7]

(Emphasis added)

[34] The concerns expressed by the Minister have been the subject of considerable research and they are well-documented. (See, generally, Canada, Firearms Control and Domestic Violence (Ottawa: Communications and Consultation Branch, Department of Justice of Canada, 1995); T. Gabor"The Impact of the [page173] Availability of Firearms on Violent Crimes, Suicide, and Accidental Death: A Review of the Literature with Special Reference to Canadian Situation" (Working Paper, 1994).) In addition to exposing the dangers associated with the misuse of firearms, this research demonstrates that given the dynamics of domestic violence and suicide, the timely removal of firearms in appropriate circumstances can save lives:

The higher the availability of firearms, therefore, the more likely they are to be chosen in suicide attempts. Because firearms have been found to be the most lethal suicide method, increases in the use of firearms in suicide attempts will likely lead to more completed suicides.

Recent research indicates that many firearm suicides are not carefully calculated but are precipitated by stressful events and facilitated by the consumption of intoxicants. Studies of survivors of serious attempts indicated that many were happy to survive and adjusted well subsequently without further attempts. Thus, suicidal motivation may frequently be transitory. . . .

Studies of adolescent suicide indicate that many suicides and attempted suicides can be characterized as impulsive. [^8]

As for the issue of weapon substitution, the evidence on offender motivation and offence dynamics indicates that, in many killings, the offender did not have a single-minded determination to kill and therefore may not have killed had a firearm not been available. Killings often arise out of conflicts characterized by intense but often transient rage. Situational stresses and the consumption of intoxicants are also characteristics of many homicides. That homicides often are not carefully pre-meditated actions is also shown by the number of perpetrators who fire only one shot into the victim or who leave the scene of the offence while the victim is still alive. A large proportion of offenders, especially in domestic homicides, attempt or commit suicide following the killing, again suggesting that the consequences of the homicide were not carefully considered. [^9]

Many domestic homicides are not necessarily premeditated, although they often occur as a culmination of abusive and violent behavior.

"The evidence indicates that potential murderers are usually not persons engaged in premeditated homicidal acts, but rather, participants in family quarrels, arguments between acquaintances, brawls, clashes of personality and so on."

In these situations, preventing access to firearms can make a critical difference. [^10]

(Emphasis added, citation omitted) [page174]

[35] The appellant accepts that s. 117.04(1) is preventative in nature and that Parliament has the right to enact such legislation under its criminal law power. The first of these concessions is self-evident and if authority is needed for the second, it can be found in the following passage from Reference re: Firearms Act (Canada), 2000 SCC 31, [2000] 1 S.C.R. 783 at pp. 807-08, 144 C.C.C. (3d) 385 at pp. 406-07:

In a related argument, some provincial interveners contended that if the purpose of the legislation is to reduce misuse, then the legislation should deal with misuse directly. On this view, Parliament could prohibit the careless or intentional misuse of guns, as it has in ss. 85-87 of the Criminal Code, but could not prohibit people from owning guns if they present risks to public safety, or regulate how people store their guns. Again, the answer is that Parliament may use indirect means to further the end of public safety. The risks associated with ordinary firearms are not confined to the intentional or reckless conduct that might be deterred by a prohibition on misuse. The Attorney General of Canada argued, for example, that the suicide rate is increased by the availability of guns. A person contemplating suicide may be more likely to actually commit suicide if a gun is available, it was argued; therefore, Parliament has a right to prevent people at risk, for example due to mental illness, from owning a gun. A prohibition on misuse is unlikely to deter a potential suicide; a prohibition on gun ownership may do so. Other examples where a prohibition on misuse falls short are not hard to envisage. A prohibition on misuse is unlikely to prevent the death of a child who plays with a gun; a prohibition on irresponsible ownership or careless storage may do so. Again, reducing availability may have a greater impact on whether a robber uses a gun than a law forbidding him to use it. Whether the 1995 gun law actually achieves these ends is not at issue before us; what is at issue is whether Parliament, in targeting these dangers, strayed outside its criminal law power. In our view, it did not.

(Emphasis added)

[36] The appellant nonetheless maintains that s. 117.04(1) is unconstitutional because it allows the state to intrude on an individual's privacy in circumstances where the state has no reason to suspect, let alone believe, that an offence has been or is being committed. According to the appellant, such a law is unconstitutional because it falls below the minimum standard which, on the authority of Hunter v. Southam, supra, the state must meet before its interest in law enforcement may legitimately take precedence over an individual's privacy rights under s. 8 of the Charter.

[37] This argument, with respect, is misguided. It is premised on the mistaken belief that the court in Hunter v. Southam intended to lay down a universal minimum standard against which every search and seizure must be measured, regardless of context. The following passage from that decision makes it clear that this is not so (at pp. 167-68 S.C.R., at pp. 114-15 C.C.C.):

The State's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of [page175] this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the State's interest is not simply law enforcement as, for instance, where State security is involved, or where the individual's interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one. That is not the situation in the present case.

(Emphasis added)

[38] It is now well-settled that the Charter is to be interpreted in a contextual manner. Cory J. stated the governing principle succinctly in R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 35 S.C.R. 154 at p. 226, 67 C.C.C. (3d) 193 at p. 243:

It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.

[39] Given that we are dealing with the relationship between rights protected under the Charter and protective legislation, the Attorneys General submit, correctly in my view, that Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, 135 C.C.C. (3d) 129 provides valuable insight into the approach to be taken when a law protecting public safety clashes with a right guaranteed to the individual under the Charter. At issue in Winko was the constitutionality of s. 672.54 of the Code which reads as follows:

672.54 Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

[40] The particular issue facing the court was whether s. 672.54 of the Code strikes a proper balance between the Charter rights to liberty, security of the person and equality interests of an [page176] accused found not criminally responsible by reason of mental disorder ("NCR"), and the right of the state to protect the public from significant threats to its safety. Guided by the court's earlier decision in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 63 C.C.C. (3d) 481, McLachlin J., as she then was, writing for the majority, made the following observation about the use of criminal law as a protective measure at p. 652 S.C.R., p. 152 C.C.C.:

The preventative or protective jurisdiction exercised by the criminal law over NCR offenders extends only to those who present a significant threat to society. As Lamer C.J.C. stated in Swain, at p. 1008"As the individual becomes less of a threat to society, the criminal law progressively loses authority." The only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trail on an issue of guilt) is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.

[41] After referring again to Swain, McLachlin J. observed at p. 659 S.C.R., p. 157 C.C.C. that ". . . the only constitutional basis for the criminal law restricting liberty of an NCR accused is the protection of the public from significant threats to its safety."

[42] Using that test as the yardstick against which to measure the constitutionality of s. 672.54, McLachlin J. found at p. 664 S.C.R., p. 161 C.C.C. that the provision adequately protected the Charter rights of an NCR accused by requiring that such persons be discharged absolutely absent a finding that they pose a "significant threat to the safety of the public". She then elaborated on the nature of the threat that must be found to exist at pp. 664-65 S.C.R., p. 161 C.C.C.:

To engage these provisions of the Criminal Code, the threat posed must be more than speculative in nature; it must be supported by evidence: H. (D.) v. British Columbia (Attorney General), [1994] B.C.J. No. 2011 (QL) (C.A.) at para. 21 [summarized 24 W.C.B. (2d) 632]. The threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold.

[43] In my view, the approach taken by McLachlin J. in Winko provides a useful framework within which to analyze the issue at hand. Stated simply, if the state can, in the interests of public safety, deprive a person of his or her liberty in circumstances where there is no reason to believe that the person has committed or is committing a criminal offence, then surely in like circumstances, the state should be able to intrude on an individual's privacy. For present purposes, it is unnecessary to finally decide whether the right to privacy under s. 8 and the right to liberty [page177] under s. 7 should be treated equally in terms of assessing the nature and extent of the threat required before the interests of the state may legitimately take precedence over the interests of the individual. Both of the Attorneys General submit, correctly in my view, that the public safety component of s. 117.04(1) envisages an identifiable threat of serious or significant harm likely to be caused by firearms and other dangerous objects to the safety of specified individuals. Hence, even though s. 117.04(1) does not contain the words "significant threat to the safety of the public" found in s. 672.54, it contemplates the same type of harm as that envisaged in s. 672.54.

[44] It follows, in my view, that under s. 117.04(1), where the issuing justice is satisfied upon information on oath that there are reasonable grounds to believe that the person of concern may use a firearm or other dangerous object to cause the type of serious harm contemplated by the provision, then, assuming that the other preconditions of the provision are met, a warrant may issue without offending the s. 8 rights of the individual. Accordingly, I would not give effect to the appellant's deficient standard argument.

[45] Turning to his second argument, the appellant submits that s. 117.04(1) is impermissibly vague because the word "desirable" is amorphous and injects a subjective criterion into the provision that could lead to the issuance of a warrant based on irrational or emotional rather than objective grounds. With respect, I disagree. The word "desirable" is not a free- standing criterion. It is an adjective firmly anchored to the objective concept embodied by the words "reasonable grounds to believe", which precede it, and the public safety concept contained in the words "the interests of the safety of the person, or of any other person", which follow it. In this regard, it bears characteristics similar to those attached to the word "fear" in s. 810.1 of the Code, a provision which this court recently considered in R. v. Budreo (2000), 2000 5628 (ON CA), 46 O.R. (3d) 481, 142 C.C.C. (3d) 225 (C.A.); application for leave to appeal dismissed, [2000] S.C.C.A. No. 542.

[46] At issue in Budreo was the constitutionality of s. 810.1. Subsection 810.1(1) reads as follows:

810.1(1) Any person who fears on reasonable grounds that another person will commit an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 170 or 171, subsection 173(2) or section 271, 272 or 273, in respect of one or more persons who are under the age of fourteen years, may lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.

[47] One of the arguments raised by the appellant in Budreo was that the word "fear" involved a purely subjective standard [page178] and its use rendered the section impermissibly vague. Writing for the court, Laskin J.A. addressed this issue in the following terms at pp. 497-98 O.R., pp. 245-46 C.C.C.:

The appellant submits that s. 810.1 does not sufficiently delineate an area of risk of unlawful conduct, and thus does not provide fair substantive notice to a citizen, because it allows for restrictions on liberty on an informant's fear on reasonable grounds. The appellant argues that the word "fear" should be contrasted with the word "belief", which is used in Criminal Code provisions authorizing an arrest or a search. "Fear", according to the appellant, can be irrational or emotional and is invariably subjective, while "belief" can be assessed objectively.

I do not accept the appellant's argument. The word "fear" or "fears" should not be considered in isolation but together with the modifying words in s. 810.1(1) "on reasonable grounds." Fear alone connotes a state of belief or an apprehension that a future event, thought to be undesirable, may or will occur. But "on reasonable grounds" lends objectivity to the apprehension. In other words, the phrase "fears on reasonable grounds" in s. 810.1(1) connotes a reasonably based sense of apprehension about a future event, or as Then J. put it, it "equates to a belief, objectively established, that the individual will commit an offence."

I acknowledge some imprecision in the phrase "fears on reasonable grounds." But some imprecision is to be expected because s. 810.1 requires a prediction about future dangerousness. So too does s. 810, which uses the same phrase. The phrase is not so imprecise that it fails to delineate an area of risk or fails to provide an adequate basis for legal debate.

(Citations omitted)

[48] Applying that reasoning to this case, I am satisfied that when the words "not desirable", which in my view simply mean "not advisable", are read in context, they can hardly be described as so subjective, vague and amorphous that they fail to provide an adequate basis for legal debate. The fact that language may be open to judicial interpretation does not render it impermissibly vague. Flexibility and vagueness are not synonymous: see Reference re Criminal Code, Sections 193 & 195.1(1)(c), 1990 105 (SCC), [1990] 1 S.C.R. 1123 at p. 1156, 56 C.C.C. (3d) 65 at p. 89 and French Estate v. Ontario (Attorney General) (1998), 1998 1771 (ON CA), 38 O.R. (3d) 347 at p. 361, 157 D.L.R. (4th) 144 (C.A.); application for leave to appeal dismissed, [1998] S.C.C.A. No. 139). Moreover, because s. 117.04(1) is procedural and does not carry with it the threat of a criminal record or imprisonment, the need for precision is diminished: see French, supra, at p. 363 O.R. Finally, to the extent that the police or the issuing justice need a framework within which to assess the "non-desirability/public interest" component of s. 117.04(1), Parliament itself has provided guidance in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39. These provisions deal with the eligibility for holding a firearms licence and read as follows: [page179]

5(1) A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross- bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.

(2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person, within the previous five years,

(a) has been convicted or discharged under section 730 of the Criminal Code of

(i) an offence in the commission of which violence against another person was used, threatened or attempted,

(ii) an offence under this Act or Part III of the Criminal Code,

(iii) an offence under section 264 of the Criminal Code (criminal harassment), or

(iv) an offence relating to the contravention of subsection 6(1) or (2) or 7(1) or (2) of the Controlled Drugs and Substances Act;

(b) has been treated for mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person; or

(c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person.

[49] For these reasons, I am satisfied that the impugned provision is not unconstitutionally vague. Accordingly, that aspect of the appellant's argument fails.

III. Failure to require reasonable grounds to believe that the items are likely to be found on the person or premises to be searched.

[50] In its present form, s. 117.04(1) contains no requirement that the peace officer seeking a warrant have reasonable grounds to believe that weapons or other dangerous items referred to in the provision are likely to be found on the person or premises to be searched and no requirement that such grounds be presented to and accepted by the issuing justice (the "missing requirements").

[51] The Attorneys General submit that the missing requirements are necessarily implicit in the provision and form part of it. They concede, however, that if they are wrong in this, then the provision cannot withstand constitutional scrutiny. In that event, they submit that it should not be struck down but the deficiency should instead be remedied by reading in the missing requirements. [page180]

[52] With respect, I do not agree with the Attorneys General that the missing requirements are necessarily implicit in the provision. My reasons are twofold.

[53] First, in like circumstances, I know of no authority (and none was cited) where the missing requirements have been found to be necessarily implicit in the particular legislation under attack. On the contrary, in R. v. Print Three Inc. (1985), 1985 2073 (ON CA), 51 O.R. (2d) 321 at p. 325, 20 C.C.C. (3d) 392 at p. 396, application for leave to appeal dismissed [1985] 2 S.C.R. x, this court found that former ss. 231(4) and (5) of the Income Tax Act [^11] violated s. 8 of the Charter, in part, because "[t]here is no requirement that the Minister have grounds to believe that evidence is likely to be found at the place of the search and there is no requirement that he present such grounds to the [issuing] judge."

[54] Likewise, in R. v. McDonough (1988), 1988 7066 (ON SC), 65 C.R. (3d) 245, 44 C.C.C. (3d) 370 (Ont. Dist. Ct.), Clarke D.C.J. found at p. 253 C.R. that former s. 99(1) of the Code [^12] violated s. 8 of the Charter for much the same reason:

On its face, the section gives a peace officer an arbitrary discretion to search a person, a vehicle, or a place or premises other than a dwelling-house, [page181] regardless of whether he has a reasonable belief, or for that matter any belief at all, that he will find evidence related to the matter being investigated. Nor is there any suggestion in s. 99(1) that the situation must be one of such urgency that the obtaining of such a warrant would be impracticable.

(Emphasis added)

[55] Notably, in re-enacting this provision, first as s. 101(1) in 1991 [^13] and then as s. 117.02(1) in 1995, [^14] Parliament addressed and rectified this deficiency. For present purposes, all that need be said is that the "necessarily implicit" argument, upon which the Attorneys General rely, does not appear to have been contemplated, let alone adopted, in like circumstances.

[56] Turning to the second reason, contrary to the joint submission of the Attorneys General, there is real controversy as to whether Parliament did intend that the missing requirements [page182] form part of s. 117.04(1). Two cases from Alberta have dealt with the predecessor provision to s. 117.04(1): one dealt with former s. 101(1) of the Code (R.S.C. 1970, c. C-34) and the other with former s. 103(1) of the Code (R.S.C. 1985, c. C-46). In those decisions the provision was interpreted as excluding any requirement that the officer seeking the warrant or the justice issuing it be satisfied, on reasonable grounds, that the objects identified in the warrant are likely to be found on the person or premises to be searched. It is useful to reproduce s. 103(1) and to again set out s. 101(1):

101(1) Where, on application to a provincial court judge made by or on behalf of the Attorney General with respect to any person, the provincial court judge is satisfied that there are reasonable grounds for believing that it is not desirable in the interests of the safety of that person, or of any other person, that that person should have in his possession, custody or control any firearm or other offensive weapon or any ammunition or explosive substance, the provincial court judge may issue a warrant authorizing the search for and seizure of any firearm or other offensive weapon or any ammunition or explosive substance in the possession, custody or control of that person.

103(1) Where, on application to a justice made by a peace officer with respect to any person, the justice is satisfied that there are reasonable grounds for believing that it is not desirable in the interests of the safety of that person, or of any other person, that that person possess, or have custody or control of, any firearm or other offensive weapon or any ammunition or explosive substance, the justice may issue a warrant authorizing the search for and seizure of any firearm or other offensive weapon or any ammunition, explosive substance, authorization referred to in subsection 90(3.2), firearms acquisition certificate, registration certificate issued under s. 109 or permit issued under s. 110, in the possession, custody or control of that person.

[57] In King's Crew, supra, at pp. 141 and 142 Alta. L.R., Sulatycky J. said this about the alleged missing requirements concerning former s. 101(1):

It is also submitted on behalf of the applicants that warrants were issued on insufficient grounds because no evidence was placed before the Provincial Judge that any of the applicants were in possession of firearms, offensive weapons, explosives or ammunition. In my view, the section does not require that such information be placed before the Provincial Judge. That is, it is not required that there be some reasonable and probable grounds to believe that a person with respect to whom or whose premises a search warrant is sought is, in fact, in possession of one of the prohibited substances.

The learned author of the text Search and Seizure in Canada, Winston McCalla, at p. 61, says:

The important point to note about this section is that it is preventative. The interests of safety and not an offence trigger its operation. Nor are reasonable grounds needed to assert that the person actually has a [page183] weapon. All that is needed is the allegation that the person ought not to have a weapon and that allegation needs to be supported by reasonable grounds.

It is not the possession of a weapon that triggers the availability of s. 101, either (1) or (2). It is the nature, the character of the individual with respect to whom a search warrant is sought.

Section 101 provides that the Provincial Judge find reasonable grounds for believing that the safety of other members of the public or the individual is threatened by that individual's possession, custody or control of the enumerated articles. There simply is no requirement that such possession, custody or control be shown as a prerequisite. [^15]

[58] In R. v. Beierback (1996), 1996 ABCA 298, 39 C.R.R. (2d) 97 at p. 99, the Alberta Court of Appeal made the following observation about former s. 103 of the Code:

Section 103 does not require that the justice be satisfied that an object exists in a place, or that he even think there is reason to believe that. But he must be satisfied that there are grounds to believe it is dangerous for the accused to possess firearms.

[59] As indicated, the Attorneys General in this case do not endorse the reasoning in the Alberta cases. On the contrary, they submit, correctly in my view, that the missing requirements are essential for s. 117.04(1) to pass constitutional muster. However, the Alberta cases cannot be ignored when assessing the "necessarily implicit" argument raised by the Attorneys General. If nothing else, they lead one to question whether Parliament did in fact intend that the missing requirements form part of s. 117.04(1). Whether Parliament did or did not have that intention, the situation in my view is far too cloudy to invoke the "necessarily implicit" principle of statutory interpretation.

[60] For these reasons, I would not give effect to the "necessarily implicit" argument. On the contrary, I agree with the appellant that, in its present form, s. 117.04(1) is constitutionally defective by reason of the absence of the missing requirements.

[61] I am further of the view that the deficiency cannot be cured under s. 1 of the Charter. While the purpose of s. 117.04(1) is pressing and substantial, the provision suffers from incurable overbreadth. It allows for wholesale fishing expeditions in which the police are permitted to invade an individual's privacy in circumstances where they may have no reason to even suspect, let [page184] alone believe, that the person of concern has any weapons or other dangerous items in his or her possession. Because of this, the provision cannot be saved under s. 1 of the Charter. It fails the stage two proportionality test set forth in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.

IV. Police not specifically empowered to enter the place to be searched.

[62] The appellant submits that s. 117.04(1) offends s. 8 of the Charter by failing to specifically empower the police to enter and search the targeted dwelling house, building, receptacle or place. Absent such specificity, the appellant argues that the section "encourages trespass by state actors against the private property rights of individual citizens".

[63] In support of his position, the appellant relies on Colet v. R., 1981 11 (SCC), [1981] 1 S.C.R. 2, 57 C.C.C. (2d) 105, a decision in which the Supreme Court considered former s. 105(1) of the Code which provided:

105(1) Where, upon application to a court made by or on behalf of the Attorney General with respect to any person, the court is satisfied that there are reasonable grounds for believing that it is not desirable, in the interests of the safety of that person or of other persons, that that person should own or have in his possession, custody or control a firearm or other offensive weapon or any ammunition or explosive substance, the court may issue a warrant authorizing the seizure of any firearm or other offensive weapon or any ammunition or explosive substance owned by or in the possession, custody or control of that person.

[64] In Colet, the police had obtained a warrant under s. 105(1) with the intention of searching Colet's home for firearms. At issue in the case was whether the police were acting in the lawful execution of their duty or trespassing when they entered Colet's property. The problem stemmed from the fact that while s. 105(1) enabled a court to issue a warrant authorizing the seizure of specified items, it did not include the power to search.

[65] Speaking for the court, Ritchie J. concluded at p. 11 S.C.R., p. 113 C.C.C. that the police "were acting without authority in attempting to enter and search the appellant's property . . .". He reasoned at pp. 112 and 113 C.C.C.:

As I have indicated, I am of opinion that any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and in case of any ambiguity would be subject to a strict construction in favour of the common law rights of the owner. This is made plain from the following excerpt from Maxwell on Interpretation of Statutes, 12th ed. (1969), pp. 251-2, where it is said: [page185]

Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted.

It appears to me to follow that any provision authorizing police officers to search and enter private property must be phrased in express terms and the provisions of the Interpretation Act are not to be considered as clothing police officers by implication with authority to search when s. 105(1) and the warrant issued pursuant thereto are limited to seizure.

I am satisfied to adopt the reasoning of Mr. Justice Toy and I share his view that a wide distinction exists between the meaning of "to seize" and that of "to search". As Mr. Justice Toy has pointed out, it is demonstrable that when Parliament sought to include the right to search in providing for the authority to seize, it did so in specific terms and in this regard I adopt the citation of the various sections of the Criminal Code to which reference is made in the above- quoted excerpt from the charge to the jury of the learned trial Judge. It is my respectful opinion that if Parliament intended to include the power "to search" in the provisions of s. 105(1), the failure to do so was a clear case of legislative oversight, but that power which has not been expressly conferred cannot be supplied by invoking the provisions of the Interpretation Act.

[66] Although the appellant accepts that s. 117.04(1) includes the word "search", he submits that, to be constitutional, the provision must specifically give the police a right of entry into the place to be searched. I see no merit in this submission. On the contrary, I agree with the Attorneys General that a right to search necessarily implies a right to enter and that the wording of s. 117.04(1) overcomes the problem considered in Colet.

[67] That, however, does not end the matter. In the course of oral argument, there was considerable discussion about whether s. 117.04(1) allows for the search of persons and places or just places. As is apparent, the provision is silent in this regard.

[68] The Attorneys General were not sure whether s. 117.04(1) was meant to include the search of persons as well as places. In the end, it was their position that if the section is found to be constitutionally defective, it should not be struck down but that the court should instead rewrite it, limiting its application to places, not persons. Reproduced below is the proposed re-write endorsed by the Attorneys General:

117.04(1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, prohibited device, ammunition, prohibited ammunition or explosive device in a building, receptacle or place, and that it is not desirable in the interests of [page186] the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

(Emphasis indicates suggested additional wording)

[69] In view of this proposal, it would seem that the Attorneys General do not believe that the section should permit the search of persons. I am not at all certain of this. Indeed, if the purpose of the provision is to remove weapons from persons in the interests of public safety, prudence would perhaps dictate that the police should be permitted, at the very least, to conduct a frisk search of the targeted individual.

[70] For reasons that will become apparent when I deal with remedy, I need not finally decide whether the provision allows for searches of the person, and if so, to what extent. Suffice it to say that this is yet another gap in the provision and it is one that I believe Parliament should address.

Remedy at Large

[71] Section 117.04(1) is in need of a constitutional overhaul. As I noted, the Attorneys General submit that to the extent the section is found to be constitutionally defective, the court should read in the requirements needed to remedy the defects. In the alternative, if reading in is found to be unacceptable, the Attorneys General join in requesting that the declaration of invalidity be suspended for six months to give Parliament an opportunity to rewrite the provision in conformity with the Charter.

[72] In my view, this is not an appropriate case for reading in. Given that this is protective legislation, the level of belief needed to justify the issuance of a warrant should be left to Parliament. For example, although I do not pass on this, it may be that in the case of premises other than perhaps dwelling houses, reasonable suspicion that weapons or other dangerous items will be found, as opposed to reasonable belief, would suffice. Likewise, I think it is for Parliament to decide whether the search should extend to persons as well as places and if so, the type of search contemplated.

[73] In short, I am not at all satisfied that this is one of the "clearest of cases" where the legislative objective and the means chosen to attain it are so obvious and unequivocal that reading in would constitute an acceptable intrusion into the legislative domain: see Schachter v. R., 1992 74 (SCC), [1992] 2 S.C.R. 679 at p. 718, 93 D.L.R. (4th) 1. [page187]

[74] I am, however, of the view that this is an appropriate case to suspend the declaration of invalidity for six months to give Parliament the opportunity to bring the legislation into conformity with its constitutional obligations. In this regard, I am satisfied that striking down the section without enacting something in its place would pose a danger to the public. Accordingly, a temporary suspension is warranted: Schachter, supra, at p. 719 S.C.R.

[75] In the interim, to ensure compliance with the spirit of the Charter, I am of the view that any warrants issued within the six-month exemption period should accord with the terms and conditions of the proposed draft legislation (found at para. 68 above) as submitted by the Attorneys General.

Remedy for the Appellant

[76] The appellant is entitled to an order quashing the search warrant issued by Justice of the Peace Trachy and executed at his home on February 2, 2000. He is also entitled to an order requiring the London Police Service to return forthwith to him the items seized from his residence pursuant to that warrant.

[77] Once the appellant is in possession of the returned items, the peace officer making the return shall be entitled to make an immediate demand under s. 117.03(1) of the Code, requiring the appellant to produce for inspection the requisite authorizations, licences and/or registration certificates contemplated by subsections (a) and (b). Should the appellant fail to comply with the demand in respect of any particular item, the peace officer may seize that item and deal with it in accordance with s. 117.03.

[78] Finally, these reasons should not be taken as foreclosing the police from taking any other lawful steps they may deem appropriate, including proceeding with the outstanding s. 111 application and seeking a fresh search warrant under s. 117.04(1) in accordance with para. 75 above.

Appeal allowed.

Notes

[^1]: The provision draws no distinction between persons and places and would seem, at least inferentially, to apply to both.

[^2]: Section 117.05(1) provides: 117.05(1) Where any thing or document has been seized under subsection 117.04(1) or (2), the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.

[^3]: Section 111(1) provides: 111(1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such things.

[^4]: See s. 487(1) (ordinary search warrants), s. 487.01(1) (general warrants), s. 487.05(1) (DNA warrants) and s. 487.1(1) (telewarrants).

[^5]: Then R.S.C., c. C-34 [as am.].

[^6]: House of Commons Debates, Vol. 133, No. 154 (16 February 1995) at 9708.

[^7]: Ibid, at pp. 9708-09.

[^8]: Gabor, supra, at p. xii.

[^9]: Ibid., at p. 76.

[^10]: Firearms Control and Domestic Violence, supra, at p. 18.

[^11]: Income Tax Act, S.C. 1970-71-72, c. 63. These provisions stated: 231(4) Where the Minister has reasonable and probable grounds to believe that a violation of this Act or a regulation has been committed or is likely to be committed, he may, with the approval of a judge of a superior or county court, which approval the judge is hereby empowered to give on ex parte, application, authorize in writing any officer of the Department of National Revenue, together with such members of the Royal Canadian Mounted Police or other peace officers as he calls on to assist him and such other persons as may be named therein, to enter and search, if necessary by force, any building, receptacle or place for documents, books, records, papers or things that may afford evidence as to the violation of any provision of this Act or a regulation and to seize and take away any such documents, books, records, papers or things and retain them until they are produced in any court proceedings. (5) An application to a judge under subsection (4) shall be supported by evidence on oath establishing the facts upon which the application is based.

[^12]: This provision stated: 99(1) Whenever a peace officer believes on reasonable grounds that an offence is being committed or has been committed against any of the provisions of this Act relating to prohibited weapons, restricted weapons, firearms or ammunition, he may search without warrant a person or vehicle or place or premises other than a dwelling-house and may seize anything by means of or in relation to which he reasonably believes the offence is being committed or has been committed. (Emphasis added)

[^13]: Section 101(1) was brought into force March 26, 1992. That provision stated: 101(1) Whenever a peace officer believes on reasonable grounds that an offence is being committed or has been committed against any of the provisions of this Act relating to prohibited weapons, restriced weapons, firearms or ammunition and that evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the coinditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and may seize anything by means of or in relation to which that officer believes on reasonable grounds the offence is being committed or has been committed.

[^14]: Section 117.02(1) provides: 117.02(1) Where a peace officer believes on reasonable grounds (a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or (b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.

[^15]: The Court of Appeal expressed its agreement with this aspect of the judgment in R. v. Conrad, supra, at p. 320 C.C.C.