SUPREME COURT OF CANADA

Colet v. The Queen, [1981] 1 S.C.R. 2

Date: 1981-01-27

Franz Colet Appellant;

and

Her Majesty The Queen Respondent.

1980: December 2; 1981: January 27.

Present: Laskin C.J. and Ritchie, Dickson, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law — Warrant to seize firearms — Owner of land refusing entry to police officers — Warrant to seize not including right to search — Criminal Code, s. 105(1), 618(2)(a) — Interpretation Act, R.S.C. 1970, c. I-23, s. 26(2).

The appellant was charged with five counts including two counts of attempted murder and two counts of intending to cause bodily harm, all of which arose out of his conduct in defence of his property, which the City of Prince Rupert had instructed to be demolished, against what he deemed to be a wrongful intrusion of police officers acting under the purported authority of a warrant to seize firearms issued under s. 105(1) of the Criminal Code.

A verdict of acquittal was entered on behalf of appellant at a trial held before a judge and a jury in view of the trial judge's ruling that a warrant to seize did not give police officers a right to search.

The British Columbia Court of Appeal allowed the appeal and directed a new trial.

Hence, the appeal to this Court on the following questions of law: 1. That the Court of Appeal for British Columbia erred in law in ruling that the learned trial judge was wrong in holding that a warrant issued by a judge of the Supreme Court of British Columbia under s. 105 of the Criminal Code did not include the right to enter and search for the items directed to be seized; 2. that the Court of Appeal for British Columbia erred in law in holding that the learned trial judge was wrong in charging the jury and instructing them that at the time of the incidents giving rise to the charges the police officers involved were trespassers on the appellant's property; 3. that the Court of Appeal for British Columbia erred in law in ruling that the learned trial judge was wrong in failing to charge the jury that at all material times the police officers were in the lawful execution of their duty.

Held: The appeal should be allowed.

[page 3]

What is involved here is a long-standing right of a citizen of this country to the control of his own property, including the right to determine who shall and who shall not be permitted to invade it.

All sections of the Criminal Code are presumably enacted "in the public interest". It would be dangerous to hold that private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers not armed with express authority to justify their action. The authority to seize specified in that warrant did not carry with it the right to enter and search.

Section 26(2) of the Interpretation Act is not applicable to the circumstances for any provision authorizing police officers to search and enter private property must be phrased in express terms. Such a power which has not been expressly conferred cannot be supplied by involving the provisions of the Interpretation Act.

Semayne's case (1604), 77 E.R. 194, 5 Co. Rep. 91a; Eccles v. Bourque, [1974 191 (SCC)], [1975] 2 S.C.R. 739, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia[^1] allowing an appeal against a verdict of acquittal by a judge and a jury. Appeal allowed.

Jay Clarke, for the appellant.

W. G. Burke-Robertson, Q.C., and M. G. A. Angene, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought pursuant to s. 618(2)(a) of the Criminal Code from a judgment of the Court of Appeal of British Columbia whereby that Court allowed an appeal by the Crown from a verdict of acquittal entered on behalf of the appellant at a trial held before Mr. Justice Toy sitting with a jury.

The appellant had been charged with five counts including two counts of attempted murder and two counts of intending to cause bodily harm, all of which arose out of his conduct in defence of his property against what he deemed to be the wrongful intrusion of police officers acting under the purported authority of a warrant to seize issued under s. 105(1) of the Criminal Code.

[page 4]

The circumstances giving rise to this case are somewhat startling and are described in those paragraphs of Mr. Justice Toy's instructions to the jury which are now conveniently reported in [1978] 1 W.W.R. at p. 673 et seq to which more extensive reference will hereafter be made. I think it convenient, however, to summarize the background which gave rise to the appellant's actions which form the substance of the allegations against him.

In the month of January, 1977, the City Council of the City of Prince Rupert, B.C., for reasons of its own, instructed employees in its Public Works Department to "clean up" the appellant's property, including the total destruction of a rudimentary shelter which he called his home and in which he resided. Not surprisingly the appellant was much incensed at this prospect and he made it widely known that he would not let the work crew of the city enter on his property and in fact that he would defend it by all possible means. In due course members of the R.C.M.P. became apprehensive that the appellant might use firearms or other offensive weapons to prevent the city work crew from destroying his habitat and as the event turned out their fears were not without foundation. After taking legal advice the R.C.M.P. obtained a warrant under the authority of Mr. Justice Hutcheon who was acting pursuant to s. 105(1) of the Criminal Code of Canada as it then was which provides that:

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 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.

The warrant granted by Mr. Justice Hutcheon read as follows:

WHEREAS it appears on the oaths of Sgt. Gordon McDougal, Leslie Jensen, Sgt. R. E. Fairhurst, Leslie Yates, and J. C. Ewart, that there are reasonable

[page 5]

grounds for believing that it is not desirable, in the interests of the safety of Franz Giacomelli Colet or of other persons, that Franz Giacomelli Colet should own or have in his possession, custody or control, a firearm or other offensive weapons or any ammunition or explosive substances;

You are hereby commanded to seize any firearms or other offensive weapons or any ammunition or explosive substance owned by or in the possession, custody or control of Franz Giacomelli Colet. (The italics are my own).

Armed with this warrant the R.C.M.P. approached the home of the appellant with a view to searching the premises for firearms or other offensive weapons or explosive substances. The appellant adhered to the view that the police were without authority to search his home and he mounted the roof from which he threw some gasoline at the policemen and otherwise indicated his determination to defend his property.

In the course of his instructions to the jury at the trial of the appellant, Mr. Justice Toy made the ruling to which I have referred and which is more fully reproduced in the Western Weekly Reports at pp. 673 to 675 to the following effect:

I don't want to keep you unduly; on the other hand, I promised you I would give you oral reasons for the ruling that I pre-emptorily made several days ago. I ruled, without giving any reasons, on 23rd November 1977, that the warrant to seize, granted by my brother Hutcheon, pursuant to s. 105(1) of the Canadian Criminal Code, R.S.C. 1970, c. C-34, did not authorize the peace officers in possession of that warrant to enter and search the accused's property. The senior peace officer, a sergeant of the R.C.M.P. of Prince Rupert, had solicited the advice of a solicitor retained by an agent of the Attorney General of the province, and I was satisfied that the warrant in question had been obtained on proper grounds.

The learned trial judge's reasons are more fully expressed at pp. 674 and 675 of the report:

The warrant of seizure was, as s. 105(1) anticipates, granted on an ex parte basis. Although the warrant was waved at the accused from a distance he was told that it was a warrant of the Supreme Court of British Columbia. The sergeant later told the accused it was a warrant to search—and I italicize the word "search"—

[page 6]

for firearms, weapons, ammunition and explosive substances.

I concluded, after anxious consideration, that the warrant. granted pursuant to s. 105 did not authorize an entry onto the accused's lands, nor did it authorize the peace officers to search the accused's lands in the absence of his licence or permission. My reasons for so holding are as follows:

1. The plain meaning of "to seize" does not, by definition or implication, indicate to me a power to enter or to search.

2. The special procedures in Pt. XIII of the Criminal Code—specifically ss. 443 and 447—refer to seizing and searching, which suggests to me one does not necessarily include the other, nor are they synonymous.

3. Other sections of the Criminal Code that recognize the distinction between searching and seizing can be found in ss. 353(1) and 181.

4. In the 1968-69 session of the Parliament of Canada, the gun control legislation was substantially altered. At that time, the present s. 105 was introduced as a new concept; namely, a procedure to remove from the citizen any weapons he otherwise lawfully possessed on the grounds that such removal was for his or others' safety: see 1968-69, c. 38, s. 98o.

At the same time, Parliament and presumably the legislative draftsmen amended the search and seizure authority section of the Code where such authority is given without a warrant if, on reasonable and probable grounds, a peace officer believes that an offence is being or has been committed. Here see former s. 96(1), 1953-54, c. 51, and the amended version, 1968-69, c. 38 98E(1).

It seems to me that Parliament, if it had intended that the peace officers authorized to seize were to have the extraordinary powers to search dwelling houses, property and/or persons, such powers would have been spelled out with particularity at the same time such as they were in s. 96(1), 1968-69, c. 38.

5. It seems to me on principle that, if a citizen is to have his rights or freedoms restricted or impaired, the legislation should clearly delineate the impairment, and restrictive rather than a broad interpretation should be placed on such legislation.

[page 7]

The verdict of the jury acquitting the appellant on all counts was delivered in light of these instructions and the appeal to the Court of Appeal was limited to the following questions of law:

1. THAT the learned trial Judge erred in law in ruling that a warrant issued by a Judge of the Supreme Court of British Columbia under Section 105 of the Criminal Code, R.S.C. 1970, Chapter C34 and amendments thereto did not include the right to enter and search for the items directed to be seized;

2. THAT the learned trial Judge erred in law in charging the jury and instructing them that at the time of the incidents giving rise to the charges the police officers were trespassers on the property;

3. THAT the learned trial Judge erred in law in failing to charge the jury that at all material times the police officers were in the lawful execution of their duty;

4. UPON such further and other grounds as Counsel may advise.

In due course Mr. Justice Craig delivered the judgment of the British Columbia Court of Appeal in which he concluded that

In order to give effect to the intent of s. 105(1) we should hold that authority to seize an offensive weapon (or any other article referred to in the subsection) includes the right to search for the article and includes the right to enter on a person's property to make the search. Accordingly, I would grant leave to appeal, allow the appeal, and direct a new trial.

The reasons for judgment of Mr. Justice Craig are now fully reported in 46 C.C.C. (2d) p. 243 and it is from the judgment rendered in conformity with these reasons that the appellant now appeals on the following three questions of law:

1. THAT the Court of Appeal for British Columbia erred in law in ruling that the learned trial Judge was wrong in holding that a warrant issued by a Judge of the Supreme Court of British Columbia under Section 105 of the Criminal Code did not include the right to enter and search for the items directed to be seized;

2. THAT the Court of Appeal for British Columbia erred in law in holding that the learned trial Judge was wrong in charging the jury and instructing them that at the

[page 8]

time of the incidents giving rise to the charges the police officers involved were trespassers on the Appellant's property;

3. THAT the Court of Appeal for British Columbia erred in law in ruling that the learned trial Judge was wrong in failing to charge the jury that at all material times the police officers were in the lawful execution of their duty.

In the final analysis this appeal raises the all important question of whether the property rights of the individual can be invaded otherwise than with specific statutory authority. It is true that the appellant's place of residence was nothing more than a shack or shelter which no doubt was considered inappropriate by the City of Prince Rupert, but what is involved here is the longstanding right of a citizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shall not be permitted to invade it. The common law principle has been firmly engrafted in our law since Semayne's case[^2] in 1604 where it was said "That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ...". This famous dictum was cited by my brother Dickson in the case of Eccles v. Bourque[^3] in which he made an extensive review of many of the relevant authorities. He was there dealing with a case of police officers entering private property for the purpose of effecting an arrest and in so doing he made reference to the limitation of the extent of the general application of Semayne's case at p. 743 saying:

But there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of one of his friends.

And later on the same page he observed:

Thus it will be seen that the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest.

The italics in the last two quotations are my own.

[page 9]

This makes it clear that Mr. Justice Dickson was limiting his remarks to occasions when the house of the individual is entered against his will by police officers in search of a fugitive from justice whose arrest they consider to be justified.

In the course of his reasons for judgment in the present case, Mr. Justice Craig appears to have treated the judgment in Eccles v. Bourque as supporting the contention that under all the circumstances

It is legislation in the public interest. This interest is paramount; the rights of the individual are secondary. Surely, then, the right to seize any of the things mentioned in the subsection must include the right to search for any of these things.

With the greatest respect for the Court of Appeal, I do not consider the Eccles case to afford authority for any such proposition. All sections of the Criminal Code are presumably enacted "in the public interest" and it would in my view be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their action.

In the very complete analysis of the cases contained in the judgment of Mr. Justice Dickson, it is noted that whatever the occasion may be the police are not justified in making an entry unless they have first announced their presence and demonstrated their authority by stating a lawful reason for their entry.

In the present case it is to be observed that although the police officers waved the warrant at the appellant from a distance, it was not a warrant "to search the premises" nor in my view did the authority to seize specified in that warrant carry with it the right to enter and search.

In support of the contention that the authority to seize included authority to search, the respondent drew attention to the provisions of s. 26 of the Interpretation Act, R.S.C. 1970 c. I-23, and in so doing contended that the power to search was a

[page 10]

necessary ingredient of the power "to seize". Section 26(2) of the Interpretation Act reads as follows:

(2) Where power is given to a person, officer or functionary, to do or enforce the doing of any act or thing, all such powers shall be deemed to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing.

As I have indicated, I am of the 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., at p. 251 where it is said:

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 than 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. The extensive number of sections of the Criminal Code to which reference was made by the trial judge and which expressly include the dual authority "to search" and "to seize" are enough in themselves to indicate that the deeming provisions of s. 26(2) of the Interpretation Act are not applicable to the circumstances.

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

[page 11]

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.

In the result, I am of opinion that the police officers were acting without authority in attempting to enter and search the appellant's property and they were therefore trespassers.

For all these reasons I would allow this appeal, set aside the judgment rendered by the Court of Appeal of British Columbia and restore the verdict of acquittal entered at trial.

Appeal allowed.

Solicitors for the appellant: Clarke, Covell, Banks, Vancouver.

Solicitor for the respondent: The Attorney General of British Columbia, Victoria.

[^1]: (1979), [1979 2992 (BC CA)], 46 C.C.C. (2d) 243. [^2]: 77 E.R. 194,5 Co. Rep. 91 a. [^3]: [1974 191 (SCC)], [1975] 2 S.C.R. 739.