SUPREME COURT OF CANADA

Wiretap Reference, [1984] 2 S.C.R. 697

Date: 1984-12-20

IN THE MATTER OF a Reference Pursuant to Section 27(1) of the Judicature Act, Chapter J-1 of the Revised Statutes of Alberta, 1980, as amended, referred by Order in Council (O.C. 84/83) of the Lieutenant Governor in Council dated the 2nd day of February, A.D. 1983, to the Court of Appeal of Alberta

File No.: 18224.

1984: March 26 and 27; 1984: December 20.

Present: Ritchie*, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law — Wiretaps — Authorization — Entry without consent to plant bug — Whether or not authorization implied power to plant device through illegal means — Whether or not illegal means for planting device can be sanctioned by term of judge's authorization — Criminal Code, R.S.C. 1970, c. C-34, ss. 25(1), 178.1, 178.11(1), (2), 178.12(1), 178.13(1), (2), 178.16, 178.18(1), 178.2 — Interpretation Act, R.S.C. 1970, c. I-23, s. 26(2).

A judge of the Alberta Court of Queen's Bench gave an authorization to intercept private communications but refused to grant an order authorizing entry upon private premises to install and to remove the microphone. The Alberta Government, as a result of this judgment, referred two questions to the Alberta Court of Appeal raising the issues of (1) whether, in Part IV.1 of the Criminal Code, Parliament intended by necessary implication to empower police officers to enter private property to install listening devices when they act under an authorization to intercept private communications and (2) whether a judge may expressly authorize such entry when he grants an authorization for an interception of private communications. The Alberta Court of Appeal answered both questions in the negative.

Held (Dickson and Chouinard JJ. dissenting): The appeal should be allowed and the two questions should be answered in the affirmative.

Per Beetz, Estey, McIntyre and Lamer JJ.: An authorization given by a judge under Part IV.1 of the Criminal Code authorizes by necessary implication any person acting under the authorization to enter any place at which private communications are to be intercepted

[page 698]

to install or to service a permitted listening device—provided such entry is required to implement the particular authorization—unless the authorization includes limitations on or prohibitions of such entry. A judge in giving an authorization has jurisdiction to expressly authorize a person acting under the authorization to enter any place at which private communications are to be intercepted to install or service a device, provided such entry is required to implement the particular authorization.

Per Dickson and Chouinard JJ. dissenting: Parliament did not intend that an authorization to intercept private communications should accord, by necessary implication, the person acting under its power to enter any place to install, monitor, repair or remove a listening device. At common law, entry into a person's private premises without either consent or specific legal authorization has always been unlawful. Unless authorized by law, a police officer has no more right than an ordinary citizen to interfere with a person's property. The Court has recently reaffirmed the longstanding protection the common law accords to rights of property in Colet v. The Queen, 1981 CanLII 11 (SCC), [1981] 1 S.C.R. 2, where it unanimously held that a statutory power to seize firearms did not carry with it, by necessary implication, a power to enter and search. This decision is a particular application of a larger canon of statutory interpretation: in general, it will be presumed in the absence of express statutory language that a legislative body did not intend to authorize an act unlawful at common law.

While Parliament clearly intended oral communications should be the subject of interception, there was nothing to indicate that such communications could not be effectively intercepted without an implied power of entry. The fact that oral communications could be intercepted more frequently and more conveniently if a power of entry was inferred does not justify the implication of such a power. The omission of this power by Parliament from the otherwise detailed statutory scheme of Part IV.1 is strong indication that it did not consider such a power either essential or necessary to give effect to an authorization to intercept oral communications.

The committee reports which were before Parliament at the time of the introduction of the Protection of Privacy Act, 1973-74 (Can.), c. 50, cannot be used to interpret Part IV.1 of the Code and, in any event, they

[page 699]

do not provide any substantial support for the view that Parliament intended by necessary implication to authorize entry in aid of interception.

Subsection 25(1) of the Criminal Code cannot support a right of entry by the police to effect an authorization to intercept oral communications; this subjection does not augment the powers of the police beyond those accorded them by the Criminal Code or at common law.

At common law, the police have never been entitled to exercise a general right of entry as part of their powers. Unless specifically authorized by law, a police officer has no right to enter upon the private property of another without consent. The situations where entry has been authorized at common law are exceptional and few in number. R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), does not stand for the proposition that a power of entry to private property for the purpose of installing a listening device can arise simply by virtue of a policeman's general duty to detect crime and enforce the law. Furthermore, Waterfield provides no assistance where the conduct of the police is of itself unlawful and has been initiated with full knowledge of its potential illegality.

Subsection 26(2) of the Interpretation Act, R.S.C. 1970, c. I-23, is a general deeming provision which cannot supply authority for conduct that is otherwise unlawful and, in any event, the conditions for its operation are not fulfilled.

Since Parliament has neither explicitly nor implicitly granted a person acting under an authorization to intercept private communications a right of entry, there can be no power in a judge to expressly grant such power as a term of an authorization pursuant to s. 178.13(2). A judge acting under a statutory scheme is limited by the authority accorded under the statute.

The two questions posed in this reference should be answered in the negative.

[Lyons v. The Queen, 1984 CanLII 30 (SCC), [1984] 2 S.C.R. 633, followed.]

APPEAL from a judgment of the Alberta Court of Appeal (1983), 1983 ABCA 332, 5 D.L.R. (4th) 601, on a reference made pursuant to s. 27(1) of the Judicature Act (Alta.) Appeal allowed, Dickson and Chouinard JJ. dissenting.

B. R. Fraser, Q.C., and Earl Wilson, for the appellant.

[page 700]

R. B. White and E. A. Johnson, representing the opposite view.

Julius Isaac, Q.C., and Shelagh Creagh, for the intervener the Attorney General of Canada.

David Watt, Q.C., and Michael Anne MacDonald, for the intervener the Attorney General for Ontario.

Claude Provost, for the intervener the Attorney General of Quebec.

Stuart Whitley, for the intervener the Attorney General of Manitoba.

The reasons of Dickson and Chouinard JJ. were delivered by

DICKSON J. (dissenting)—The issues this reference presents are (1) whether in Part IV.1 of the Criminal Code Parliament intended by necessary implication to empower police officers to enter private property to install listening devices when they act under an authorization to intercept private communications and (2) accordingly, whether a judge may expressly authorize such entry when he grants an authorization for an interception of private communications.

These questions raise the substantial issue of the limits Parliament intended to impose upon the interception of private communications by the police in aid of criminal law enforcement. Equally important, this reference compels the Court to inquire into societal interests in conversational privacy protected by the Criminal Code as well as the breadth of every citizen's common law right to the exclusive and unimpaired enjoyment of property.

I Background

In 1982, an application for an authorization to intercept private communications was made before Mr. Justice D.C. MacDonald of the Alberta Court of Queen's Bench pursuant to s. 178.12(1) of the Criminal Code.

Justice MacDonald gave the authorization after he was satisfied that the requirements for the grant of an authorization established by s. 178.13(1)

[page 701]

of the Criminal Code were fulfilled. At the same time, an order authorizing the entry upon private premises for the purpose of installing and removing a microphone or microphones was also sought. MacDonald J. refused to include such power in the authorization and he gave written reasons at a later date in support of his refusal. See Re Application for Authorization to Intercept Private Communications (1982), 1982 CanLII 1311 (AB KB), 31 C.R. (3d) 31 (Alta. Q.B.)

Thereafter, pursuant to s. 27(1) of the Judicature Act, R.S.A. 1980, c. J-1, the following questions were referred to the Alberta Court of Appeal by order of the Lieutenant Governor in Council (O.C. 84/83), dated February 2, 1983:

Does an authorization given by a judge under Part IV.1 of the Criminal Code (Canada), by necessary implication, authorize any person acting under the authorization to enter any place at which private communications are proposed to be intercepted under the authorization for the purpose of installing, monitoring, repairing or removing any electromagnetic, acoustic, mechanical or other device?

Does a judge have jurisdiction, in giving an authorization under Part IV.1 of the Criminal Code (Canada), to expressly authorize any person acting under the authorization to enter any place at which private communications are proposed to be intercepted under the authorization for the purpose of installing, monitoring, repairing or removing any electromagnetic, acoustic, mechanical or other device?

For the purpose of hearing and considering the above questions, words and expressions defined in Part 1V.1 of the Criminal Code (Canada) have the meanings given to them in that Part.

The Court of Appeal (McGillivray C.J. and Laycraft, Harradence, Belzil and Stevenson JJ.A.) answered both questions in the negative: Reference re an Application for an Authorization (1983), 1983 ABCA 332, 5 D.L.R. (4th) 601. The five member panel was unanimous in its negative response to the first question. The majority of the Court also answered the second question in the negative. Chief Justice McGillivray and Justice Harradence each rendered separate dissenting reasons for answering the second question in the affirmative.

[page 702]

The Attorney General of Alberta has now brought an appeal from this decision by virtue of s. 37 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended. He seeks an affirmative answer to both questions. The Attorney General of Canada, as well as the Attorneys General of Ontario and Manitoba and the Attorney General of Québec have all intervened in support of the position advanced by the Attorney General of Alberta. By order of Chief Justice McGillivray, Mr. R. B. White was appointed to act as counsel to represent the opposite view; he appeared in this Court as well.

II Part IV.1 of the Criminal Code

Prior to the amendment of the Criminal Code by the Protection of Privacy Act, 1973-74 (Can.), c. 50, the interception of private communications was not regulated by Parliament. Part IV.1 of the Criminal Code now contains a complete legislative statement of the legal limits to the invasion of privacy permitted in the conduct of an investigation.

A review of this legislation reveals that Parliament has struck a balance between the privacy interest of the individual and the competing interest of the public in law enforcement: R. v. Commisso, 1983 CanLII 160 (SCC), [1983] 2 S.C.R. 121, at pp. 124-25, per Lamer J. The interpretation this legislation should receive in light of this balance of competing interests has been aptly described by Zuber J.A. in R. v. Welsh and lannuzzi (No. 6) (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363 (Ont. C.A.), at p. 369:

It is apparent that in enacting the Protection of Privacy Act, 1973-74 (Can.), c. 50, now Part IV.1 of the Code, Parliament had two objectives. The first was to protect private communications by prohibiting interception and to render inadmissible evidence obtained in violation of the statute. The second objective, which balances the first, was to recognize the need to allow the appropriate authorities, subject to specific controls, to intercept private communications in the investigation of serious crime, and to adduce the evidence thus obtained.

This legislation must be viewed and interpreted with a full, fair and realistic appreciation of both these objectives.

[page 703]

The right to private communication cannot be diluted simply because unlawful interceptions are made by honest men whose motives are simply to detect crime.

The main features of the regulatory scheme Parliament chose to accomplish these competing objectives are readily apparent. First, a group of indictable offences has been created prohibiting: (a) the interception of private communications by anyone by means of any form of listening device (s. 178.11(1)); (b) the purchase, sale or possession of a listening device (s. 178.18(1)); (c) the disclosure of any private communication intercepted by the use of any such device (s. 178.2). Additionally, a court may order punitive damages up to $5,000 be paid to any person aggrieved by the unauthorized interception of private communication or the improper disclosure of them. Secondly, Parliament has created, as exceptions to these prohibitions, procedures subject to judicial control for the lawful interception of private communications in limited circumstances (ss. 178.11(2), 178.12, 178.13). Finally, Parliament has established rules regarding the admissibility of evidence obtained by the interception of private communications (s. 178.16).

The provisions of Part IV.1 of particular relevance to this appeal are as follows:

178.1 In this Part,

"authorization" means an authorization to intercept a private communication given under section 178.13 or subsection 178.15(2);

"electromagnetic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing;

"private communication" means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it;

[page 704]

178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.

(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;

178.12 (1) An application for an authorization shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482 and shall be signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of this section by

(a) the Solicitor General of Canada personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

(b) the Attorney General of a province personally, in respect of any other offence in that province,

and shall be accompanied by an affidavit which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters, namely:

(c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;

(d) the type of private communication proposed to be intercepted;

(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private

[Page 705]

communications are proposed to be intercepted and a general description of the manner of interception proposed to be used;

178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(2) An authorization shall

(a) state the offence in respect of which private communications may be intercepted;

(b) state the type of private communication that may be intercepted;

(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;

(d) contain such terms and conditions as the judge considers advisable in the public interest;

III The Issues

The first issue the reference poses is whether Parliament intended, by necessary implication, that an authorization given by a judge should accord the person acting under the authorization power to enter any place to install, monitor, repair or remove a listening device. The second question asks whether a judge may, in granting the authorization, expressly empower the police to make such entry.

Chief Justice McGillivray initially requested that all counsel address whether the Canadian Charter of Rights and Freedoms had any impact on these two questions. The Alberta Court of Appeal did not deal with this point and it was not canvassed in argument before this Court. Consequently,

[page 706]

in this reference, I intend to consider only the questions of statutory interpretation raised.

IV The Existence of Implied Authority

(A) The Nature of the Issue

It is the submission of the Attorney General and his supporting interveners (hereinafter "the appellants") that the power to enter to install a listening device is accorded by necessary implication to any person acting under an authorization granted pursuant to Part IV.1 of the Criminal Code. Nothing in Part IV.1 expressly provides that when an authorization to intercept private communications is made, the power to enter in aid of the interception is included. The Attorney General of Alberta has been compelled to ask, therefore, whether the statute produces that result by implication and to argue accordingly.

The neutral language used by the Lieutenant Governor in Council belies the real significance of the first question and the far-reaching consequences of an affirmative answer to it. Put plainly, the argument is that Parliament intended, although it did not expressly so specify, to sanction otherwise unlawful conduct on the part of the police by permitting them to trespass to intercept private communications.

The police are entitled to take any lawful action in aid of law enforcement. Thus the power of the police to enter to install a listening device when to do so would involve no violation of the law cannot be disputed, so long as this does not conflict with any of the terms imposed in the authorization. There is no need for Parliament to approve either expressly or by implication an otherwise lawful entry undertaken by the police and I do not understand the first question to place this in issue. It is rather the issue of whether Parliament has authorized an illegal entry that lies at the heart of the question.

The appellants' claim that police officers are permitted to enter private premises to install listening devices is broad and indiscriminate. It is worthwhile to examine briefly the consequences of

[page 707]

accepting that such a sweeping right exists. The power so granted would go much further than authorizing surreptitious entry and would allow the police to act openly and utilize whatever means to achieve entry they found most expedient. Thus, access could be obtained by forcing doors or windows or through trickery or coercion. Further, if police acting under Part IV.1 are implicitly authorized to make entry, s. 25 of the Code would permit them to effect such entry by overcoming force a property owner is normally entitled to assert, to prevent anyone, including the police, from entering the premises without permission. If the right exists, it must exist in respect of premises of persons who, at the time the entry is made, are innocent of any offence as well as those who have more than passing acquaintance with the criminal process.

(B) The Common Law of Trespass and Statutory Interpretation

Prima facie, every invasion of property, be it ever so minute and negligible, is a trespass and therefore unlawful. Such trespass may not amount to crime since "breaking the close" simpliciter is not a criminal offence. Nonetheless, entry into the premises of another without either consent or specific legal authorization has always been tortious and unlawful. It is an interference with the common law right to peaceful enjoyment of one's property that has been recognized at least since Semayne's Case (1604), 5 Co. Rep. 91 a; 77 E.R. 194 (K.B.), where it was said at p. 195: "That the house of every one is to him as his castle and fortress, as well as for his defence against injury and violence, as for his repose .... "

As well, it is the gist of the following oft-quoted passage from the great case Entick v. Carrington (1765), 2 Wils. K.B. 275; 95 E.R. 807, at p. 817:

... our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he

[page 708]

does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law.

The inviolability of a person's property has from earliest times been vigorously asserted and resolutely defended by the courts. Unless lawfully authorized, a police officer has no more right than an ordinary citizen to interfere with a person's property.

The long standing protection the law has accorded rights of property was reaffirmed recently by this Court in Colet v. The Queen, 1981 CanLII 11 (SCC), [1981] 1 S.C.R. 2. The issue in Colet was whether a statutory power to seize firearms carried with it, by necessary implication, a power to enter and search. Ritchie J., writing for the unanimous Court, concluded it did not. In his opinion, the police were not entitled to invade the private rights of individuals unless they were expressly authorized to do so.

In rejecting the argument of the Crown that a right of entry and a power of search should be implied, Ritchie J. had this to say, at pp. 8 and 9:

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....

. . . 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.

[page 709]

The decision in Colet is a particular application of a larger canon of statutory interpretation. This canon embodies the presumption in favour of vested rights (see Duff C.J. in Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, 1933 CanLII 86 (SCC), [1933] S.C.R. 629, at p. 638) as well as the presumption that express language must be found to demonstrate that a legislative body intended to authorize an act otherwise unlawful at common law. On the necessity of express language see also: S.G.G. Edgar, Craies on Statute Law (7th ed. 1971), pp. 121-22; E.A. Driedger, The Composition of Legislation (1957), p. 127; P. St.J. Langan, Maxwell on Interpretation of Statutes (12th ed. 1969), p. 116.

The requirement for express language was recently invoked by the House of Lords in Morris v. Beardmore, [1980] 2 All E.R. 753. This case raised a question analogous to the one at hand. It involved the power of a constable to require a person to undergo a breath test and the constable's purported right to enter and remain on the person's property to enforce that requirement. The submission was made there, as it is made here, that because there was no express provision prohibiting such entry the right should be inferred. Lord Diplock disposed of this argument in these words, at p. 757:

But, with respect, the boot is on the other leg; if Parliament intends to authorise the doing of an act which would constitute a tort actionable at the suit of the person to whom the act is done, this requires express provision in the statute ... .

The presumption is that in the absence of express provision to the contrary Parliament did not intend to authorise tortious conduct ....

See also the opinions of Lord Edmund-Davies, at p. 759, and Lord Scarman, at p. 763.

To the same effect is the statement of Lord Keith in Finnigan v. Sandiford, [1981] 2 All E.R. 267 (H.L.), at p. 271, in reference to a purported power to enter, " . . . Parliament cannot be taken to have authorised any further inroads on the rights of individual citizens than it specifically enacted".

[page 710]

To overcome this Court's decision in Colet and the broad principle of statutory interpretation it reflects, the appellants advanced several arguments. I propose now to examine each of these in turn.

(C) The Appellants' Arguments

(1) Right of Entry Essential to Give Effect to Parliament's Intent

The appellants submit that the authority to intercept oral communications, as distinct from telecommunications, is unworkable without the right to enter to install listening devices. Such a power should therefore be implied.

There has been no material presented to this Court to support the suggestion that oral communications cannot be effectively intercepted without the power to trespass to install listening devices. Justice MacDonald in Re Application for Authorization to Intercept Private Communications, supra, at p. 46, refused to "accept as a fact that without trespassory entry almost all electronic bugging would be impossible.... " Mr. Justice Stevenson in the Court of Appeal labelled this assertion, correctly in my respectful opinion, "an appeal to convenience" (at p. 633).

I also find the argument singularly unpersuasive. Parliament intended oral communications, as well as telecommunications, should be the proper subject of interception. That much is made clear by the disjunctive definition of "private communications" in s. 178.1; in this regard, see Goldman v. The Queen, 1979 CanLII 60 (SCC), [1980] 1 S.C.R. 976.

I am not convinced, however, that the interception of oral communications contemplated by Part IV.1 cannot be accomplished without a trespass. It may well be that, absent covert entry, electronic bugging would be much more difficult, but it is not correct to say that oral communications cannot be intercepted without a power of entry. See Lopez v. United States, 373 U.S. 427 (1963), at pp. 467-68, per Brennan J. dissenting.

[page 711]

If the police obtain the cooperation of a person who does have a legal right of access to a place, there is no need to commit a trespass to install a listening device. Unlawful entry can also be avoided when oral communications are intercepted with the aid of a person fitted with a body pack who enters a place with consent or by the use of a long range parabolic microphone. It seems to me that there are many occasions when oral communications can be effectively intercepted without a power of entry.

The strongest indication that Parliament considered a power of entry was not essential to give effect to an authorization to intercept oral communications is the omission of this power from the extremely detailed provisions of Part IV.1. The fact that they could perhaps be intercepted more frequently and more conveniently if there were such a power constitutes, in my view, scant justification for inferring such a power.

(2) Legislative Background

The appellants invited the Court to look at the material which led up to the introduction of the Protection of Privacy Act in order to determine the intention and objectives present to the minds of the legislators. Particular reference was made to the report of the Canadian Committee on Correction (the Ouimet Committee — 1969) as well as the minutes of the Standing Committee of the House of Commons on Justice and Legal Affairs. In their view, these materials made clear that Parliament was well aware of the fact that surreptitious entry into private premises for the purpose of concealing electronic listening devices was an integral part of electronic surveillance.

Several recent judgments of this Court discuss the admissibility of extrinsic materials where issues of statutory interpretation are raised: Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, at pp. 721-24; Law Society of Upper Canada v. Skapinker, [19841 1984 CanLII 3 (SCC), 1 S.C.R. 357; Re: Upper Churchill Water Rights Reversion Act, 1984 CanLII 17 (SCC), [1984] 1 S.C.R. 297. It is clear from these cases that extrinsic

[page 712]

evidence is not receivable as an aid to the construction of a statute. This is of course true whether or not the case raises a constitutional issue. No direct assistance can be derived, therefore, from the materials relied upon by the appellant in deciding whether Parliament intended by necessary implication to authorize entry.

In any event, I find the committees' reports inconclusive. Nowhere can I find any substantial support for the view that the proponents of the legislation intended implicitly to endorse trespass in aid of authorized interceptions.

I conclude therefore that the legislative background cannot be used as an aid to the construction of Part IV.1 and that, in any event, it does not support the appellants' position.

(3) Dalia v. United States

Considerable reliance was placed upon Dalia v. United States, 441 U.S. 238 (1979), by the parties. Dalia involved constitutional issues as well as questions of statutory interpretation; I shall refer only to the latter which closely parallel the questions in the present appeal.

Part IV.1 of the Criminal Code resembles Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. paras. 2510-2520. Like Part IV.1, Title III does not expressly authorize covert entry to effect authorized interceptions. The majority of the Supreme Court of the United States, per Powell J. (Burger C.J., White, Blackmun and Rehnquist JJ. concurring), held that a power of entry was implicitly included. Justices Stevens, Brennan and Marshall dissented, finding a covert entry to install a bug to be unlawful under the statute. Justice Stewart, the ninth member of the Court, disposed of the matter on constitutional grounds and therefore did not reach the question of statutory construction.

[page 713]

Justice Powell, for the majority, gave three reasons for his holding. His first argument was that Congress had enacted a detailed scheme to authorize interception of private communications, and there was nothing to suggest that authority was limited to cases in which covert entry would not be required. The same could be said about Part IV.1 of the Criminal Code. I agree, however, with the dissenting opinion of Justice Stevens that this argument actually works the other way. Where a legislative scheme speaks in considerable detail about most aspects of an issue, but is silent on one aspect, that silence is particularly telling. To imply permission from silence, in the words of Stevens J. at p. 263, "converts silence into thunder". Parliament's silence cannot be taken to sanction what amounts to breaking and entering. The careful attempt in Part IV.1 of the Code to circumscribe invasions of privacy cannot be seen as an indication of a parliamentary intent to legalize break-ins.

Justice Powell's second argument was that the legislative history of Title III confirmed that Congress meant to authorize covert entries. The dissenting judges drew exactly the opposite conclusion. I have already indicated why I do not consider the legislative context in which Part IV.1 was enacted useful to the resolution of this case.

Justice Powell argued finally that a limitation having the effect of prohibiting covert entry would thwart congressional intention because most bugging requires covert entries. The difficulty with this argument is that it assumes what it is trying to prove. If legislative intention is to enable interception of oral communications by whatever means, prohibition of covert entry indeed thwarts legislative intention. I am unwilling, however, to make the assumption this argument requires. I have already expressed my reasons for concluding that a right of entry is not necessary for the effective operation of Part IV.1.

[page 714]

I agree with the point made in the dissenting opinion of Justice Brennan in Dalia that where private communications have been recorded subsequent to a trespass to install a listening device two invasions of privacy have taken place. The listening to the conversation breaches conversational privacy; the illegal entry breaches physical privacy. A breach of conversational privacy, by itself, is clearly approved of by Part IV.1, provided an authorization has been obtained; a breach of physical privacy is not. I am not prepared to infer that Parliament, by authorizing invasion of privacy in one form, has thereby authorized invasion of privacy in another form.

I would note that scholarly comment on Dalia has been less than panegyrical: Reddick and Westin, Covert Police Break-Ins Create Conflict Among U.S. Circuit Courts, 30 Mercer L. Rev. 707 (1979); Ruffley, Case Comment: Dalia v. United States, 57 J. Urb. L. 588 (1980); Latta, No Requirement of Prior Judicial Approval for Covert Entry to Effect Electronic Surveillance—Dalia v. United States, 29 De Paul L. Rev. 165 (1979); Oshinsky, Judicial Interpretation of Title III—Should Privacy Interests Yield in the Wake of Congressional Silence on Entries to Install Bugs?, 29 Cath. U.L. Rev. 697 (1980); Breaking and Entering into Private Premises to Effect Electronic Surveillance: Dalia v. United States, 39 Md. L. Rev. 754 (1980); Basik, Case comment: Dalia v. United States, 9 Bait. L. Rev. 308 (1980); Cobb, Covert Entry, Electronic Surveillance, and the Fourth Amendment: Dalia v. United States, 40 La. L. Rev. 951 (1980); McNulty, Dalia v. United States: The Validity of Covert Entry, 65 Iowa L. Rev. 931 (1980).

With the greatest respect, I would reject the reasoning of the majority in Dalia.

(4) Section 25 of the Criminal Code

The next submission made by the appellants is that entry to effect an authorization to intercept oral communications is allowed by s. 25(1) of the Criminal Code. Under this view of the matter, s.25(1)

[page 715]

permits such entry because it is required to accomplish an authorized action of the police.

Subsection 25(1) provides:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

The Alberta Court of Appeal refused to give s. 25(1) the breadth urged by the appellants. Applying my reasoning in Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739, Justice Stevenson concluded at p. 632 that s. 25(1) " ... affords a protection for required or authorized acts and the use of force in respect thereof but it begs the question here which is whether someone acting under an 'authorization' is required or authorized by law to trespass."

In Eccles, it was contended that s. 25(1) of the Criminal Code authorized trespass by the police in order to effect an arrest. I responded to this argument in the following terms, at p. 742:

Section 25 does not have such amplitude. The section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, is whether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they were required or authorized to make an arrest. If they were authorized by law to commit a trespass, the authority for it must be found in the common law for there is nothing in the Criminal Code. [Emphasis added.]

[page 716]

I maintain this view. Subsection 25(1) does not augment the powers of the police beyond those otherwise given to them by the Criminal Code or at common law. Thus, it cannot accord a right of entry. Such a right must be found in Part IV.1 or at common law. Subsection 25(1) is of no assistance to the appellants.

(5) The Common Law Powers of the Police

It was argued that the common law recognizes certain powers inherent in the execution of a police officer's duty. These powers, it is urged, would permit the police to engage in acts necessary to the fulfillment of their duty even though they involve an otherwise unlawful interference with a person's liberty or property, Reliance was placed upon Eccles v. Bourque, supra, and R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), as well as R. v. Stenning, 1970 CanLII 12 (SCC), [1970] S.C.R. 631, and Knowlton v. The Queen, 1973 CanLII 148 (SCC), [1974] S.C.R. 443.

If a general power of entry existed at common law, it would still be necessary to examine whether such a power could operate in the face of Parliament's failure to include it expressly in the statutory scheme created to regulate the interception of private communications.

I would emphasize that the police have never been entitled to exercise a general right of entry as part of the powers accorded them at common law. No authority cited to this Court expressly recognizes such a right. The tenor of the cases the appellants did raise in argument runs counter to the position advanced. Unless specifically authorized by law, a police officer has no right to enter upon the private property of another without consent.

The situations where entry has been authorized are exceptional and few in number. The common law always allowed a warrant to search for stolen goods to be granted by a magistrate: see Chic Fashions (West Wales), Ltd. v. Jones, [1968] 1 All E.R. 229 (C.A.) Another exception was recognized in Eccles v. Bourque, supra. In that case, the appellant had sued three members of the Vancouver

[page 717]

Police Force for trespass alleged to have been committed when they entered the appellant's apartment to apprehend a fugitive for whom outstanding arrest warrants existed. The claim was denied by this Court on the basis that the police were entitled, in limited circumstances, to enter private property without consent to effect an arrest. I made the following statement at p. 744:

I would wish to make it clear, however, that there is no question of an unrestricted right to enter in search of a fugitive. Entry can be made against the will of a householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises and (b) proper announcement is made prior to entry.

The appellants, however, rely upon the following emphasized lines from my reasons in the same case at p. 743:

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. So it is that in Semayne's Case a limitation was put on the "castle" concept....

As Ritchie J. recognized in Colet, it is quite clear when these lines are read in context that they do not create a general right of entry on the part of the police whenever it can be said that the public at large has an interest in the process to be executed. The creation of so sweeping an exception would quickly swallow up the general protection accorded a property owner at common law from arbitrary invasion. Eccles v. Bourque, supra, creates a limited exception to that general protection. So viewed, it is authority against the position advanced by the appellants.

The Waterfield, Stenning and Knowlton cases all involved charges of assaulting or obstructing a police officer in the execution of his duty. Charges were laid as a result of altercations with the police and the defence was raised that the police were not acting in the execution of their duty at the time.

[page 718]

The Court of Appeal in Waterfield, at p. 661, enunciated the following test for determining the limits of a policeman's duty:

In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. [My emphasis.]

R. v. Waterfield does not stand for the proposition that a power of entry to private property for the purpose of installing a listening device can arise simply by virtue of a policeman's general duty to detect crime and enforce the law.

Furthermore, the Waterfield test provides no assistance when the police have trespassed to install a listening device. I cannot accept that conduct of itself unlawful and initiated with full knowledge of its potential illegality could ever fall within the general scope of a policeman's duty. As Lord Edmund-Davies recognised in Morris v. Beardmore, supra, at p. 759:

My Lords, I have respectfully to say that I regard it as unthinkable that a policeman may properly be regarded as acting in the execution of his duty when he is acting unlawfully, and this regardless of whether his contravention is of the criminal law or simply of the civil law.

The fact that police officers could be described as acting within the general scope of their duties to

[page 719]

investigate crime cannot empower them to violate the law whenever such conduct could be justified by the public interest in law enforcement. Any such principle would be nothing short of a fiat for illegality on the part of the police whenever the benefit of police action appeared to outweigh the infringement of an individual's rights. For the Waterfield principle to apply, the police must be engaged in lawful execution of their duty at the time of the conduct in question.

(6) Section 26 of the Interpretation Act

The appellants argue that s. 26(2) of the Interpretation Act, R.S.C. 1970, c. I-23, grants an implied power of entry to a peace officer authorized to intercept oral communications. Subsection 26(2) reads:

26. ...

(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.

The appellants argue that a police officer is given the power under Part IV.1 to do a certain thing (i.e. intercept oral communications), thus he is deemed by s. 26(2) to have the power necessary to do that thing (i.e. to enter surreptitiously to install a listening device). This proposition was rejected by Mr. Justice MacDonald as well as by the Alberta Court of Appeal.

I cannot accept this line of argument either. In Colet v. The Queen, supra, Ritchie J. held that any provision authorizing police officers to enter private property must do so expressly and s. 26(2) of the Interpretation Act could not be considered as clothing police officers with such authority. I respectfully agree that a general deeming provision in the Interpretation Act cannot supply the authority for conduct that is otherwise unlawful.

[page 720]

As well, the argument that s. 26(2) supplies the necessary authority to enter seems to me fundamentally to beg the question. The very issue is whether Parliament has granted the "power" the subsection refers to as a precondition to its operation. Furthermore, I do not believe, for reasons already given, that a right of entry is "necessary" to permit the police to accomplish the interception of oral communications.

(D) Her Majesty The Queen v. Papalia

Subsequent to the hearing of this appeal, the Ontario Court of Appeal rendered judgment in R. v. Papalia (1984), 1984 CanLII 2190 (ON CA), 47 O.R. (2d) 289. This case raised in part the very issue presently under consideration. The case against the accused depended upon evidence of electronically intercepted private communications. The trial judge admitted evidence of private communications intercepted on business premises and refused to admit evidence of private communications intercepted in two automobiles and certain other derivative evidence. The accused were acquitted and the Crown appealed. The issue on the appeal was the admissibility of the electronically intercepted evidence under s. 178.16(1) of Part IV.1.

Brooke J.A. (Arnup and Blair JJ.A. concurring) concluded that the trial judge erred in refusing to admit the private communications intercepted in the accused's automobile and the derivative evidence. The Court of Appeal next considered the trial judge's decision to admit the private communications intercepted in an office and boardroom located on business premises of the accused. The listening devices were installed following surreptitious entry to these premises on two occasions. The enabling authorization under which the police officers acted specifically provided that in intercepting private communications, the police officers were authorized "for such purpose to enter such places as may be necessary in order to install, monitor or remove" any listening devices.

[page 721]

In the opinion of Brooke J.A., the trial judge quite properly held the evidence admissible under s. 178.16(1) on the basis of the decisions of the Manitoba Court of Appeal in R. v. Dass, 1979 CanLII 2923 (MB CA), [1979] 4 W.W.R. 97, and the British Columbia Court of Appeal in R. v. Lyons (1982), 1982 CanLII 236 (BC CA), 140 D.L.R. (3d) 223. Brooke J.A. went on to review the Dass and Lyons decisions as well as the decision of the Alberta Court of Appeal in the instant case and that of the United States Supreme Court in Dalia v. United States, supra. He concluded that the interceptions had been lawfully made within the meaning of s. 178.16(1)(a).

In reaching this conclusion, Brooke J.A. decided that an authorization carries with it, by necessary implication, the authority to enter to install a listening device. In his opinion, almost all instances of wiretapping and electronic surveillance involved conduct in the nature of trespass and this includes surreptitious or covert entry. He was persuaded that Parliament recognized this when the legislation was passed and intended to deal comprehensively with the problem in Part IV.1 of the Code. Thus, while a judge may specifically authorize surreptitious entry or other conduct in the nature of a trespass, such express authorization is unnecessary.

With respect, I cannot agree. For the reasons already given, I am not persuaded Parliament intended by its silence to authorize entry by the police to install a listening device. I conclude therefore that the Ontario Court of Appeal erred in its decision on this point.

(E) The Statutory Scheme

I am fortified in my conclusion that the authority to trespass in order to install a listening device is not to be found either expressly or by implication in Part IV.1. Section 178.16, which makes evidence of intercepted conversations prima facie inadmissible, is a logical corollary to s. 178.11(1), which makes it an offence to wilfully intercepts a private communication. Subsection 178.11(2) lists

[page 722]

the number of persons to whom s. 178.11(1) does not apply, including a person who intercepts a private communication "in accordance with" an authorization. The important point is that outside of the specifically enumerated exceptions, everyone who willfully [sic] intercepts a private conversation by means of a device is guilty of an indictable offence. Parliament has taken great pains in Part IV.1 to lay down an elaborate code legitimizing conduct otherwise criminal by the terms of s. 178.11(1).

As McIntyre J. recognized, in analyzing the purpose of Part IV.1 in Goldman v. The Queen, supra, at p. 994, "the courts must be astute to limit breaches [of the right to privacy] to the extent provided by the Code". The notion of an "implied" right to enter private property does not sit easily with that language.

(F) Conclusion on Question # 1

In my view, the decision in Colet v. The Queen, supra, and the classic principle of statutory interpretation it embodies, are in the end dispositive of this case. The Court held in Colet, at p. 10, that "... any provision authorizing police officers to search and enter private property must be phrased in express terms". That reasoning seems to me to apply whether the right of the police to enter private property is sought for the purpose of intercepting private communications or seizing dangerous firearms. I am not at all persuaded that Colet can be distinguished. The right of entry is claimed here for the same purpose as it was in Colet: to aid in the enforcement of the criminal law. Equally, the same justification for inferring the right is advanced: the proper and effective fulfillment of a judicially granted warrant. Ultimately, the logic upon which Colet turns is the traditional legal protection accorded private property and the long-standing refusal of the judiciary to impair that protection where Parliament has not itself done so expressly.

[page 723]

It follows I would answer the first question posed in the reference in the negative.

V The Power of a Judge to Expressly Authorize Entry

The second question posed is whether a judge may expressly grant a power to enter as a term of an authorization to intercept oral communications. Paragraph 178.13(2)(d) of Part IV.1 is relied upon in support of the argument that a judge possesses such power. I set it out here again for convenience.

178.13

(2) An authorization shall

(d) contain such terms and conditions as the judge considers advisable in the public interest; and

The appellants argue that a judge may grant a right of entry when the interception of oral communications is authorized, whether or not Parliament intended by necessary implication that such a power should exist. The majority of the Court of Appeal concluded that s.178.13(2)(d) could only be construed as words of limitation and could not therefore be read as authorizing a court to permit a trespass. Chief Justice McGillivray and Justice Harradence dissented on this point. Each gave separate reasons for his conclusion that a judge could grant the power to trespass as one of the terms of an authorization.

Chief Justice McGillivray held that a judge who grants an authorization has the power to order that the electronic device may be placed by surreptitious entry or by trick where the circumstances require such action. He distinguished this Court's decision in Colet, noting in particular that the success of the police operation depends upon a listening device being planted without the knowledge of the occupier, thus eliminating the element of invasion and the possibility of confrontation that, in his opinion, concerned the Court in Colet.

Furthermore, he considered Parliament well aware that surreptitious entry into private premises

[page 724]

for the purpose of concealing electronic devices was often an integral part of electronic eavesdropping. Therefore, when it allowed the practice of bugging to continue it implicitly intended to allow surreptitious entry to continue to the extent authorized by the court. Entry to install a listening device was similar to a policeman standing in a property owner's flower bed listening at an open window. The serious invasion the legislation contemplates is not the entry upon a person's property, but the entry into his mind by intercepting private communication. Once such an invasion is authorized, the means of accomplishing this invasion are merely incidental. Thus, he concluded that an authorization does not carry with it the implicit right of entry; however, a judge may spell out, in describing the manner of interception, any right to enter or re-enter where the police request such power and the judge deems it appropriate.

Harradence J.A. considered that a judge could resort to the common law to permit a peace officer to gain entry to install a listening device. He frankly noted that this step was an expansion of the traditionally limited exceptions to a property owner's rights. Such a judge-made adaptation of police power was justified, in his view, by the serious challenge to our social order posed by modern day criminal activity. He concluded, at p. 628:

I am of opinion that if a superior court judge, on an application for an authorization made pursuant to Part IV.1 of the Criminal Code, determines that the public weal can only be served by the interception of private communications and that effective interception of those communications can only be obtained by placing a device on private property, then it is his duty to adapt the common law to meet modern conditions by authorizing a surreptitious entry or a suitable strategem to effect the installation of a device on that property.

The power of a judge to grant a power to enter as a term of an authorization has been considered in other cases as well. In R. v. Dass, supra, at p. 117, Huband J.A., in language obiter, but 'carefully

[page 725]

chosen, dealt with this issue in terms that I would, with respect, adopt:

As previously noted, the reference to the installation of the authorization order is not a fiat by the courts to violate the laws of the land. I see nothing in the Criminal Code which gives a judge the power to authorize or condone illegal entry. Crown counsel points to s. 178.13(2)(d), which appears to enable the judge to impose terms and conditions which he considers advisable in the public interest. In my view, that provision was not intended as a mechanism to have the courts authorize illegal acts. The public interest is not served by acts which violate the civil or criminal laws of the land. The terms and conditions could not validly include permission, directly or by implication, to ignore or breach such laws.

In R. v. Lyons, supra, Anderson J.A., dissenting in part, applied Huband J.A.'s conclusion in the Dass case that an authorization does not give any authority to trespass and an authorizing judge has no power to authorize or permit the police to act in such an unlawful manner.

In R. v. Papalia, supra, the Ontario Court of Appeal concluded that while a judge may include a right of entry as one of the terms of an authorization, it was not necessary for him to do so; in the opinion of that court, an authorization by necessary implication accords the police a right of entry.

In R. v. Hardy (1984), 1984 CanLII 3602 (NB CA), 56 N.B.R. (2d) 417, 146 A.P.R. 417, the New Brunswick Court of Appeal considered whether the trial judge erred in admitting into evidence private communications which were intercepted by a room monitoring device surreptitiously placed in the accused's residence. In that ease, the authorization given by the judge expressly permitted the police "where reasonably necessary to enter upon the premises in order to install, monitor, remove, service, maintain any and all electromagnetic, acoustic, mechanical or other device that may be required to implement this authorization".

[page 726]

The Court agreed that the intercepted private communications were inadmissible. The Court was, however, divided upon the power of the authorizing judge to grant a right of entry. Stratton J.A. (Hughes C.J. concurring) applied the reasoning of Stevenson J.A. in this reference and concluded that Part IV.1 does not allow a judge to authorize a trespass onto private property for the purpose of installing a listening device. Angers J.A. expressed his agreement with the dissenting reasons of Chief Justice McGillivray. The wording of the authorization was, however, not sufficiently clear to satisfy him that the judge who granted the order intended to authorize the precise entry which was effected.

If Part IV.1 does not explicitly or implicitly legalize a trespass to install a listening device, then as a corollary, there can be no power in a judge to authorize such an illegality. A judge could never possess the authority to grant the police powers which Parliament did not intend them to be able to exercise. When acting pursuant to a statutory scheme, a judge is limited by the authority granted him by the statute under which he acts. Parliament has not expressly or by necessary implication, authorized a right of entry. A negative response to the first question in this reference compels a negative response to the second.

Before concluding, I would like to make a brief comment upon Justice Harradence's reasoning that the common law, suitably expanded, could provide the legal support for the judicial sanction of surreptitious entry into private premises. With respect, I have the gravest doubt whether it would ever be appropriate for a judge to look to the common law for the right to authorize action by the police which the legislation itself does not expressly or implicitly permit him to authorize; this is especially true where the statutory scheme is an exhaustive and comprehensive expression of legislative policy, like Part IV.1 of the Code. Where the judge must not only look outside the statutory scheme for the right to act in the manner he proposes, but must "adapt" the common law to suit his purpose, it seems to me he crosses the

[page 727]

boundary which separates the judicial from the legislative function.

I would answer the second question in the negative.

VI Conclusion

The right to be free from unwanted intrusion is important and fundamental. It leaves no room for casual inference of Parliamentary sanction of illegality. When Parliament declines to sanction expressly what would otherwise be unlawful acts, we should not assume that it has impliedly given such acts its imprimatur. Nor should we conclude that Parliament intended the courts to fill a lacuna legis by writing in something which Parliament left out. I agree with the following observation of Lord Scarman in Morris v. Beardmore, supra, at p. 763, which seems to me to reach the heart of the present appeal:

... it is not the task of judges, exercising their ingenuity in the field of implication, to go further in the invasion of fundamental private rights and liberties than Parliament has expressly authorised.

If the police, in order to carry out effectively their difficult and frequently dangerous tasks, are required to break and enter private dwellings, that right should be sought from Parliament in express terms, as an amendment to Part IV.1. It is for Parliament, not the judiciary, still less the police themselves, to fill any gap in the Criminal Code.

Until such time as Parliament speaks specifically on this matter, I am of the view that an unlawful entry to install a listening device is an unauthorized and unjustified use of police powers. If the authorization to intercept did purport to sanction such an entry, the authorization would be invalid in that respect. Judges simply do not have the power to permit anyone, even police officers, to commit unlawful acts. It is therefore my conclusion that both questions posed in this reference

[page 728]

must be answered in the negative. I would answer them accordingly and dismiss this appeal.

The judgment of Beetz, Estey, McIntyre and Lamer JJ. was delivered by

ESTEY J.—Because the answer to question 1 may be affected by the content of the particular authorization, it is difficult to answer the question in generality. The manner of interception may be expressed in very specific terms in one order, whereas the court in another order may authorize the use of several or all of the devices enumerated in Part IV.1, leaving open to the investigative agency the choice between these devices, and the choice between wiretapping with or without interference with equipment inside the premises, or radio surveillance by electromagnetic devices, or a combination of these and other devices. A different answer, for example, would be required where the order specifically authorized the use of a battery-powered radio transmitter. With that explanation, and for the reasons I have given in Lyons v. The Queen, 1984 CanLII 30 (SCC), [1984] 2 S.C.R. 633, I would answer the two questions referred to the Court in the following manner:

Question 1: Yes, provided that such entry is required to implement the particular authorization and provided that the authorizing judge does not include in the authorization any limitations on or prohibition of such entry.

Question 2: Yes, provided that such entry is required to implement the particular authorization.

No question arose in Lyons, supra, relating to the Canadian Charter of Rights and Freedoms or its application as the trial arose before the Charter became part of our Constitution. In their presentation to this Court, the parties did not advance any submission to the effect that the Charter of Rights had any application in this appeal. Neither does it appear that any such presentation was made in the Court of Appeal, although counsel were there

[page 729]

afforded an opportunity to do so. I therefore have not addressed the relation of the Charter, if there be any, to the questions put to the Court of Appeal.

Appeal allowed, DICKSON and CHOUINARD JJ. dissenting.

Solicitor for the appellant: Ross W. Paisley, Edmonton.

Solicitor appointed to represent the opposite view: R. B. White, Edmonton.

Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: Ministry of the Attorney General for Ontario.

Solicitor for the intervener the Attorney General of Québec: Claude Provost, Montréal.

Solicitor for the intervener the Attorney General of Manitoba: Department of the Attorney General of Manitoba.

• Ritchie J. took no part in the judgment.