T-560-84
George Gordon Rollinson (Plaintiff)
v.
Her Majesty the Queen in Right of Canada
(Defendant)
T-245-87
Her Majesty the Queen in Right of Canada
(Plaintiff)
v.
George Gordon Rollinson (Defendant)
INDEXED AS: ROLLINSON V. CANADA (T.D.)
Trial Division, Muldoon J.—Vancouver, Novem-
ber 29 and 30, December 1, 2 and 3, 1988;
Ottawa, January 17, 1991.
Constitutional law — Charter of Rights — Criminal process
— S. 8 right to be secure against unreasonable search and
seizure — Customs inspectors boarding yacht without warrant
to search for contraband alcohol — Finding no contraband —
Seizing documents to examine for evidence of administrative
offences — Seizure without warrant of papers from vessel
used as dwelling unconstitutional — Border search exception
to warrant requirement applying only to contraband, not per
sonal papers.
Constitutional law — Charter of Rights — Criminal process
— Illegal interference with property under cover of misstate
ment of law, other bizarre, malicious and dishonest dealings
by customs officers, constituting cruel and unusual treatment
within s. 12.
Constitutional law — Charter of Rights — Equality rights
— Customs Act s. 11(1) requiring master of inbound vessel to
report in person to custom house — Plaintiff other regular
pleasure and commercial traffic, reporting by telephone only
pursuant to arrangement improvised by customs — Telephone
reports accepted from others as sufficient — Customs officers
seizing plaintiff's vessel for non-compliance with letter of
statute — Enforcement action unconstitutional — Denial of
s. 15 right to equality before law where state allows some class
members to depart from general statutory requirement and
singles one out for strict enforcement.
Constitutional law — Charter of Rights — Life, liberty and
security — Customs officers seizing, without warrant, vessel
on which citizen lived for failure on unspecified occasions to
report inward — No reasonable and probable grounds —
Property of nature to support life or security of person (such
as home) not to be seized except in accordance with fundamen
tal justice.
Customs and excise — Customs Act — Obligation of master
to attend in person at custom house — Customs authorities
erecting sign on pier instructing vessels to report by telephone
— Compliance with sign good defence to charge of failing to
report — Rule ignorantia juris non excusat limited to crimes,
not applying to regulatory infractions.
Practice — Evidence — Court has discretion, at common
law, to exclude evidence obtained by trick; or if prejudicial, of
tenuous admissibility, and probative force trifling.
The plaintiff brought an action for a declaration that the
seizures of his papers, boat, and automobiles were illegal, and
for damages. The Crown's action was to confirm the seizures.
Held, the plaintiff's action should be allowed, and the
Crown's dismissed.
The seizure of the personal papers was a breach of section 8
of the Charter. Since the seizure of the boat was judged
"premature" by the manager nominally responsible for the
inspectors, the seizure of the papers was so a fortiori; that
seizure cannot, therefore, be reasonable.
The exceptional power to detain persons to effect a "border
search", recognized by the Supreme Court of Canada in R. v.
Simmons and R. v. Jacoy, applies to contraband goods, and
does not confer the power to search, or to seize, personal
papers. Here, the "border search" ended when the inspectors
failed to turn up any liquor.
At common law, the Crown is required to obtain a judicial
warrant before proceeding to seize private papers: Entick v.
Carrington. Although the Supreme Court left open the possibil
ity for exceptions where it is not feasible to obtain prior
authorization, the general requirement that a valid warrant is a
precondition to a valid search or seizure is entrenched by
section 8 of the Charter: Hunter et al. v. Southam Inc.
It can be inferred from the demeanour on the stand of the
inspectors that the seizure of the papers was not truly made in
the belief, held in good faith, that they had a legal duty to carry
out the seizure. The illegal seizure was attended with intimida
tion of an older couple, as well as with misstatements to them
about the law. It would therefore bring the administration of
justice into disrepute to admit the diaries as evidence.
The Court has the discretion, at common law and apart from
subsection 24(2) of the Charter, to rule out relevant evidence
obtained from the defendant by a trick: Karuma v. The Queen.
Evidence may also be excluded if its admission would be unfair,
in that it is gravely prejudicial, its admissibility is on other
grounds tenuous, and its probative force is trifling in relation to
the main issue before the Court: R. v. Wray.
Although there is no entrenched right to property in the
Charter, section 7 protects the individual's interest in certain
transcendent kinds of property, such as essential medicines or
the shelter of home, which support life and security of the
person. It is a breach of section 7 to lure, entrap or trick a
person into a situation, contrived by the State, in which the
draconian application of statutory provisions permits the State
to seize that person's dwelling without compensation.
The defendant's employees subjected the plaintiff and Mrs.
Rollinson to cruel and unusual treatment, within the meaning
of section 12 of the Charter, in: the bizarre manner of boarding
their boat and the warrantless seizure of private papers carried
out with a misrepresentation as to the legal requirement; the
interrogation of the plaintiff and the demand that he prove that
which he had no legal duty to prove; the mockery by the
customs staff at Douglas station when he was sent to ask them
to confirm his reports; seizing the Rogue a third time, just after
he had paid for its release; the several threats to the safety and
integrity of the vessel herself; losing some of his private papers;
and entrapping him into a situation of non-compliance.
The seizure of the Rogue for failure to report inward accord
ing to the letter of the Customs Act was a violation of the
plaintiff's constitutional right to equality before the law, when
Customs had placed a sign on the pier requiring boaters to use
the extra-statutory telephone reporting procedure which it had
improvised. It is contrary to subsection 15(1) of the Charter to
take enforcement action against one member of a class, for
alleged non-compliance with a statutory provision, when the
state accepts the same behaviour on the part of other members
of the class subject to the statutory regime.
The Crown's argument that, in spite of the sign, ignorance of
the law does not justify the plaintiff in departing from the
requirements of the statute, had to be rejected. The maxim
ignorantia juris non excusat applies only to crimes in the true
sense. It has no application to an infraction of the essentially
civil revenue provisions of the Customs Act.
The Crown is liable when its servants fail to exercise due
care, as well as for intentional abuses of power on their part.
The sign on the pier was either a deliberate trap or a negligent
misstatement as to arriving sailors' reporting obligations; either
way it is actionable in tort.
The cost of repairs to the vessel to make it as good as before
the seizure, and other provable damage to property, sound in
special damages. General damages lie for the offence given by
the Crown's servants' importunity, their harassment of the
plaintiff, and actual malice on the part of one of them.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 6(1), 7, 8, 12, 15, 24.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 92(14), 101.
Criminal Code, R.S.C. 1970, c. C-34, s. 19.
Customs Act, R.S.C. 1970, c. C-40, ss. 11, 18, 231(1).
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1.
Customs Act, S.C. 1986, c. 1, s. 212(3).
National Defence Act, R.S.C. 1970, c. N-4, s. 128.
CASES JUDICIALLY CONSIDERED
APPLIED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145;
(1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6
W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14
C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9
C.R.R. 355; 84 D.T.C. 6467; 55 N.R. 241; Entick v.
Carrington (1765), 95 E.R. 807 (K.B.); Paragon Proper
ties Ltd. v. Magna Envestments Ltd. (1972), 24 D.L.R.
(3d) 156; [1972] 3 W.W.R. 106 (Alta. C.A.).
DISTINGUISHED:
R. v. Schwartz, [1988] 2 S.C.R. 443; (1988), 55 D.L.R.
(4th) 1; [1989] 1 W.W.R. 289; 56 Man. R. (2d) 92; 45
C.C.C. (3d) 97; 66 C.R. (3d) 251; 88 N.R. 90; R. v.
Simmons, [1988] 2 S.C.R. 495; (1988), 67 O.R. (2d) 63;
55 D.L.R. (4th) 673; 45 C.C.C. (3d) 296; 66 C.R. (3d)
297; 89 N.R. 1; 30 O.A.C. 241; R. v. Jacoy, [1988] 2
S.C.R. 548; [1989] 1 W.W.R. 354; (1988), 18 C.E.R.
258; 38 C.R.R. 290; 2 T.C.T. 4120; R. v. Rao (1984), 46
O.R. (2d) 88; 9 D.L.R. (4th) 542; 12 C.C.C. (3d) 97; 40
C.R. (3d) 1; 10 C.R.R. 275; 4 O.A.C. 162 (C.A.).
CONSIDERED:
Kuruma v. The Queen, [1955] A.C. 197 (P.C.); R. v.
Wray, [1971] S.C.R. 272; (1970), 11 D.L.R. (3d) 673;
[1970] 4 C.C.C. 1; 11 C.R.N.S. 235.
REFERRED TO:
R. v. Therens et al., [1985] 1 S.C.R. 613; (1985), 18
D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 38 Alta. L.R.
(2d) 99; 40 Sask. R. 122; 18 C.C.C. (3d) 481; 13 C.P.R.
193; 45 C.R. (3d) 57; 32 M.V.R. 153; 59 N.R. 122; Noor
Mohamed v. The King, [1949] A.C. 182 (P.C.); Callis v.
Gunn, [1964] 1 Q.B. 495; Nicholson v. Haldimand-Nor-
folk Regional Board of Commissioners of Police, [1979]
1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC
14,181; 23 N.R. 410; Martineau v. Matsqui Institution
Disciplinary Board, [1980] 1 S.C.R. 602; (1979), 106
D.L.R. (3d) 385; 50 C.C.C. (2d) 353; 13 C.R. (3d) 1; 15
C.R. (3d) 315; 30 N.R. 119.
AUTHORS CITED
Linden, Allen M., Canadian Tort Law, 4th ed., Toronto:
Butterworths, 1988.
Linden, Allen M., "Tort Law's Role in the Regulation
and Control of the Abuse of Power", in Special Lec
tures of the Law Society of Upper Canada, Toronto:
Richard De Boo, 1979.
Sopinka, John and Sidney N. Lederman, The Law of
Evidence in Civil Cases, Toronto: Butterworths, 1974.
Williams, Glanville, Textbook of Criminal Law, 2nd ed.,
London: Stevens & Sons, 1983.
COUNSEL:
J. C. Blewett for plaintiff.
Gunnar O. Eggertson for defendant.
SOLICITORS:
J. C. Blewett, White Rock, British Columbia
for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MULDOON J.:
EDITOR'S NOTE
The Executive Editor has decided, pursuant to
the Federal Court Act, subsection 58(2), that
parts of His Lordship's 103-page reasons for
judgment herein are of sufficient importance to
warrant publication in the official reports.
This judgment is of significance by reason of
the Charter issues raised in two actions for dam
ages arising out of a series of seizures of the
plaintiff's motor vehicles and residence, the motor
yacht Rogue. In seizing the vessel, the customs
officers confiscated plaintiff's personal papers,
which took the form of diaries or "logs", and the
Court had to consider whether these were seized
in a "border search" and whether this was a
necessary act of law enforcement. Since this was
a warrantless search, Muldoon J. reviewed the
landmark judgments — from the 1765 case of
Entick v. Carrington to Hunter et al. v. Southam
Inc. — on the common law requirement of a
warrant as authorization for the seizure of private
papers. His Lordship then discussed the statutory
exigencies of the Customs Act in relation to the
constitutional imperatives of the Charter. Another
issue was whether the seized papers were admis
sible in light of common law principles governing
the exclusion of evidence and subsection 24(2) of
the Charter. Also included in the published report
are the Trial Judge's remarks on the question of
the Crown's liability for general and special dam
ages and as to the fact that enactment of the
Charter and Canadian Bill of Rights had been
necessitated by decades of "deplorable state
misconduct". Brief summaries have been pre
pared indicating the nature of the omitted portions
of the reasons for judgment.
The plaintiff and his wife were an older couple
who maintained a postal address at White Rock,
British Columbia but resided on their forty-five
foot yacht Rogue. The couple frequently had
occasion to travel in the Rogue south of the
American border to visit friends and to take
advantage of the services offered at marinas in
the State of Washington which were both better
and cheaper than those available at their home
port. The suspicion of customs officials was
aroused by reports from informers to the effect
that plaintiff was smuggling alcohol. At the same
time, the customs operation was under an internal
investigation as to whether the local officials were
properly carrying out their duties. Plaintiff himself
was formerly a customs officer but had not been
well liked by his colleagues. The Rogue was
seized on some three occasions by customs offi
cers while plaintiff's two automobiles were seized
by the RCMP.
The initial seizure of the Rogue took place on
February 1, 1984. Plaintiff docked at the govern
ment pier, had nothing to declare and was
cleared by the uniformed customs inspector.
Minutes later, however, four plain clothes officers
raided the vessel in "gang-busters" fashion —
plaintiff's evidence, that they acted in a rough and
ignorant manner in regard to the vessel's integri
ty, was believed. No contraband was found.
Nevertheless, the leader of the raiding party
decided to seize the Rogue. He completed a
seizure receipt, stating that the vessel's forfeiture
under the Customs Act was for failing to report
inward to Canadian Customs upon her return to
Canada. The vessel was ordered to be held at the
government dock pending terms of release. The
Court found that there had been no reasonable
and probable grounds for this search and seizure
and that the officials had no idea of any but a
vague generic alleged breach. The search and
seizure were disproportionate and oppressive in
every way. While there may be nothing amiss in
intimidating terrorists and narcotics dealers,
decent citizens, even if suspected of an offence
against the Customs Act, should be treated with
sensitivity and respect by servants of the State.
The statement of claim contained an allegation
that, at the conclusion of the search, defendant's
servants seized plaintiff's diaries and records,
contrary to Charter sections 8 and 24. His Lord
ship's conclusion was that the official in charge of
the raiding party "thought he had struck gold (in
the sense of law enforcement) in the citizen's
so-called 'ship's logs' which, he believed as and
when he got his hands on them, would prove the
variable numbers of instances of non-reporting
which have been alleged herein. Having received,
through modest, but real, intimidation during his
raid that which turned out to be dross, or even
that which raises inferences of laxity on the part
of the customs agents at Douglas Station and the
Pacific Highway station, Borisenko would not —
could not — relent, but had to press on against
Rollinson and the other Crown witnesses went
willy-nilly along with Borisenko, to a greater or
lesser degree, either for 'the good of the service'
or to save their own jobs, pensions or service
records".
Is the seizure of personal papers subsumed in the
vessel's seizure?
Despite all the foregoing, can the Crown validly
claim that the seizing of the citizen's private
papers was a necessary act of law enforcement? It
does not appear to have been such, even upon the
evidence thus far reviewed: but there is more.
Although the Crown has engaged counsel, resisted
Mr. Rollinson's claims and sued him to confirm
seizure of the Rogue (plus two automobiles serially
owned by and seized from him), the seizure of
which vessel is founded on the acts, words and
testimony of former agent Borisenko, yet the
Crown's agents were not so single-minded as
would appear in the pleadings. "Premature" is
how Terry Arthur Langley described the seizure of
the citizen's vessel on February 1, 1984. On exami
nation in chief by the Crown's counsel, Langley
testified [transcript, at page 487]:
A. Okay. The document of February the 1st [Ex. 2(79)], in
my opinion was premature, in that Mr. Rollinson had not
been given the opportunity to respond to the allegations,
and hence the meeting of February the 7th.
On cross-examination, Langley testified [tran-
script, at pages 509-510]:
Q. All right now, the seizure of February 1st, that's the one
that is shown at Document 2, *79 [Ex. 2(79)], if I could
take you to that. I think this is the one that you've
testified that you thought was premature?
A. Yes, processing this document definitely was premature.
Q. And how did that come about?
A. Well the preparation of this document is the result of the
Mobile Unit's attention relative to comparison of the
vessel reports inward into the United States and inward
into Canada.
Q. Yes, now this is signed by Mr. Borisenko. When you say
that it was premature, was Mr. Borisenko a little impul
sive in charging ahead with this at that time?
A. Well, certainly from my perspective. I had been a Cus
toms investigator for a number of years and was involved
in seizure actions on a regular basis. Now, as I under
stand it, Mr. Rollinson provided certain explanations at
the time of the initial boarding of his vessel and it was
commonly my practice to sit down with the individual
alleged to be committing the Customs offenses and dis
cuss the offenses with them to give them an opportunity
to respond.
So also this witness testified again and again, as
recorded in the transcript at pages 511-512 and
531.
Who is Terry Arthur Langley? As of January 1,
1984, he was the Acting Manager of the Interna
tional Marine and Rail Unit of Canada Customs
in metropolitan Vancouver. The Mobile Inspection
Unit was a subordinate organization within the
International Marine and Rail Unit. Below Lang-
ley in the hierarchy was Charles Szalai and below
him were Borisenko, Savaia and Tufts (Transcript,
at pages 477, 480, 688 and 710). So, while the
Crown now seeks energetically to characterize the
February 1 seizure of the citizen's vessel as lawful,
normal and unexceptionable, that was not always
the view of the Crown's high official who was
nominally, but not truly, responsible for that sei
zure. If the seizure of the vessel on February 1,
1984, were "premature" and therefore unneces
sary, even from the viewpoint of a responsible
officer of the Crown, then a fortiori so, and even
more so, was the seizure of the citizen's private
papers. It was unreasonable. Section 8 of the
Charter [Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]] was
breached.
The manner of infringing section 8
Section 8 of the Charter runs thus:
8. Everyone has the right to be secure against unreasonable
search or seizure.
An unlawful seizure is ipso facto unreasonable.
Borisenko's warrantless seizure of the citizen's pri
vate papers, in circumstances of intimidation, in
which he wrongly purported to be required by law
to seize them, constituted an infringement of Rol-
linson's right guaranteed by section 8 of the Chart
er. Borisenko's seizure of those papers on behalf of
the Crown was unlawful. It therefore was unrea
sonable. That constitutes infringement of section 8
by means of overriding the citizen's will through
intimidating force of numbers intruding into the
home after dark and falsely stating a requirement
which was illegal.
Were the papers seized in a "border search"?
In this regard the Crown's counsel makes much
of the notion of "border searches" in order to save
his client's agent's misconduct from curial denun
ciation as being unconstitutional. It has been
asserted that the four strong men, without a search
warrant among them, boarded the Rogue after
dark on February 1, 1984, in order to search for
contraband liquor. In any event, they found none.
Even if that action can be legitimately likened to a
search at the secondary customs line in order to
verify the declaration of "no goods to declare"
asserted by the incomer at the first line, what is
being sought is undeclared goods, or contraband,
not the individual's private papers. When the pre
mature seizure of the vessel is instead said to be
based on the citizen's previous failure (or was it
previous failures?) to report to customs, the ordi
nary statute law, much less the supreme law of the
realm, does not accord the Crown's agents any
warrantless authority to seize the citizen's private
papers. Such papers are not contraband.
It would be absurd for first-line agents to refer
the citizen to the second line on suspicion of
having private papers and it would be, and is,
illegal for second-line agents to seize, without a
warrant, the citizen's private papers — as distinct
from undeclared goods bought or acquired abroad
— for neither the Customs Act [R.S.C., 1985 (2nd
Supp.), c. 1], then and now, nor any other revenue
statute includes such papers in the notion of con
traband, or dutiable goods. They are akin to one's
driver's licence, the deed or title to one's home,
one's diary or correspondence, one's lawyer's writ
ten opinion or one's physician's written diagnosis
or prescription. Any agent of the State who wishes
to seize that sort of document, from the citizen's
abode, believing it will furnish evidence of the
citizen's having committed an offence, must first,
on oath, persuade a justice of the peace or other
appropriate judicial officer of the reasonableness
of such a belief, and may not act upon it until
furnished with a properly issued warrant.
The Crown's counsel, however, argues that the
seizure of the citizen's private papers constituted
what has been called a "border search" (fouilles
effectuées à la frontière) and that the said seizure
did not violate the citizen's right to be secure from
an unreasonable seizure, as prescribed in section 8
of the Charter. In principal support of that conten
tion, counsel cited two recent majority judgments
of the Supreme Court of Canada, both delivered
on December 8, 1988: R. v. Simmons, [1988] 2
S.C.R. 495; and R. v. Jacoy, [1988] 2 S.C.R. 548.
Mrs. Simmons arrived in Canada by aeroplane
from Jamaica, and Mr. Jacoy arrived in Canada
— at Douglas Station — by automobile from
Seattle, U.S.A., so, the question arose as to wheth
er each had been detained within the meaning
ascribed in R. v. Therens et al., [1985] 1 S.C.R.
613, so as to invoke paragraph 10(b) of the Chart
er, which guarantees the right to retain and to
instruct counsel without delay and to be so
informed. It may be left to some other case, per
haps, to determine whether, when one's private
papers are seized from and in one's dwelling in
one's very presence, one is necessarily "detained".
On the facts of the case at bar, it must be held that
the Rollinson's were not detained, for the search
for contraband yielded nothing. So, while the
Crown succeeds in fending off any finding that the
Customs inspectors violated paragraph 10(b) in
the circumstances, the circumstances do reveal a
warrantless search of the citizens' dwelling after
dark and the seizure of private papers.
It is the last element which distinguishes the
case at bar from those Supreme Court judgments
relied on by the Crown here. They were concerned
with the bringing into Canada of "goods subject to
entry at the customs, or prohibited goods, secreted
[sic] about [the] person" in the words of the
previous statute's [R.S.C. 1970, c. C-40] section
143. A citizen's private papers are simply not such
goods. They never become such goods, even if, as
here, the citizens' dwelling is a vessel capable of
crossing the border. So, the Court concludes that
the jurisprudence which enhances the authority
customs agents have to detain border-crossers and
to search for and seize goods including contra
band, does not carry such authority in regard to
seizing personal papers.
The common law has required the Crown's agents
to procure a valid warrant for the seizure of pri
vate papers
In that landmark judgment of the Supreme
Court of Canada, Hunter et al. v. Southam Inc.,
[1984] 2 S.C.R. 145, the unanimous reasons of the
Court were written by Mr. Justice Dickson, later
Chief Justice of Canada. He cited and quoted
from "the great case" of Entick v. Carrington
(1765), 95 E.R. 807 (K.B.), as expressing the
authentic statement of the common law in regard
to the seizure of personal property. Apart from the
passages of Entick v. Carrington quoted by Dick-
son J., there are also published therein the follow
ing highly pertinent passages [at pages 807 and
814]:
In trespass; the plaintiff declares that the defendants on the
11th day of November ... 1762, at Westminster ... with force
and arms broke and entered the dwelling-house of the plaintiff
... and continued there four hours without his consent and
against his will ... and read over, pryed into, and examined all
the private papers, books, &c. of the plaintiff there found,
whereby the secret affairs, &c. of the plaintiff became wrong
fully discovered and made public; and took and carried away
Lord Chief Justice. — I shall not give any opinion at present
; I shall only just mention a matter which has slipped the
sagacity of the counsel on both sides, that it may be taken
notice of upon the next argument.... suppose a justice of peace
issues a warrant to search a house for stolen goods, and directs
it to four of his servants, who search and find no stolen goods,
but seize all the books and papers of the owners of the house,
whether in such a case would the justice of peace, his officers or
servants, be within the Stat. 24 Geo. 2? [Emphasis not in
original text.]
In Entick v. Carrington, "the Earl of Halifax
was .. . one of the lords of the King's Privy
Council, and one of his principal Secretaries of
State, and" [at page 809] he had "made his
warrant under his hand and seal directed to the
defendants, ... in the King's name ... taking a
constable to your assistance, to make strict and
diligent search" for "several weekly very seditious
papers . . . contain[ing] gross and scandalous
reflections and invectives upon His Majesty's Gov
ernment, and upon both Houses of Parliament .. .
to seize and apprehend, and to bring [the plain
tiff], together with his books and papers, in safe
custody before me [the Earl of Halifax] to be
examined concerning the premises" [at pages 808
and 810]. Upon the very issues which concern the
parties in the cases at bar, "the whole Court gave
judgment this term for the plaintiff" [at page 815]
as demonstrated in the following pertinent pas
sages [at pages 817-818]:
The warrant in our case [found to be issued by the Secretary of
State without jurisdiction to do so] was an execution in the first
instance, without any previous summons ... or proof that he
[the plaintiff] was the author of the supposed libels; a power
claimed by no other magistrate whatever ... ; it was left to the
discretion of these defendants to execute the warrant ... when
he might have no witness present to see what they did; for they
were to seize all papers, bank bills, or any other valuable papers
they might take away if they were so disposed; there might be
nobody to detect them. ... [W]e were told by one of these
messengers that he was obliged by his oath to sweep away all
papers whatsoever; if this is law it would be found in our books,
but no such law ever existed in this country; ... [W]e can
safely say there is no law in this country to justify the defend
ants in what they have done; if there was, it would destroy all
the comforts of society; for papers are often the dearest prop
erty a man can have. ... (B]ut if the goods are not found there,
he [the one who searches and seizes] is a trespasser; the officer
in that case is a witness; there are none in this case, no
inventory taken; if it had been legal many guards of property
would have attended it. ... The law never forces evidence from
the party in whose power it is; when an adversary has got your
deeds, there is no lawful way of getting them again but by an
action. [Emphasis not in original text.]
Now that expression of the common law rights
of the citizen from some 225 years ago, stated in
Entick v. Carrington, may be contrasted with the
actions of the four modern "messengers" under
Borisenko's leadership, when they seized the citi
zen's papers telling him that it was "required",
without even holding so much as a spurious war
rant, "no inventory taken" either. Since Rollinson
did not willingly part with his papers, the Crown's
servants were purporting to force evidence from
the party (Rollinson) in whose power (custody) it
was.
The Charter requires the Crown's agents to pro
cure a valid warrant for the seizure of private
papers
It must not be thought that in this era of the
Charter a citizen's rights are less than those of 225
years ago. Here is what Dickson J. wrote on that
score for the unanimous Supreme Court in the
Hunter et al. v. Southam Inc. case, above cited [at
page 158]:
In my view the interests protected by s. 8 are of a wider
ambit than those enunciated in Entick v. Carrington. Section 8
is an entrenched constitutional provision. It is not therefore
vulnerable to encroachment by legislative enactments in the
same way as common law protections. There is, further, noth
ing in the language of the section to restrict it to the protection
of property or to associate it with the law of trespass. It
guarantees a broad and general right to be secure from unrea
sonable search and seizure.
Dickson J. then made a comparison with the
provisions of the U.S. Constitution which are per
tinent here [at pages 158-159]:
The Fourth Amendment of the United States Constitution,
also guarantees a broad right. It provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei
zures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
Construing this provision in Katz v. United States, 389 U.S.
347 (1967), Stewart J. delivering the majority opinion of the
United States Supreme Court declared at p. 351 that "the
Fourth Amendment protects people, not places". Justice Stew-
art rejected any necessary connection between that Amendment
and the notion of trespass. With respect, I believe this approach
is equally appropriate in construing the protections in s. 8 of the
Charter of Rights and Freedoms. [Emphasis not in original
text.]
Having performed the second stage of a border
search, and having turned up no contraband, the
Borisenko boarding party was without lawful au
thority to seize the citizen's private, personal
papers. Borisenko testified that as far as he knew a
search warrant was not necessary under the Cus
toms Act and Regulations on February 1, 1984,
less than a year after the proclamation in vigour of
the Charter. For that state of knowledge he may
be forgiven, for Hunter et al. v. Southam Inc. was
not published by the Supreme Court until Septem-
ber 17, 1984. But that forgiveness does not dilute
the citizen's undoubted right even in February,
1984, to be secure against unreasonable seizure of
his papers, nor does it dilute the intimidating
number of agents who jumped aboard the Rogue
as daylight disappeared and "required" the citizen
to surrender his papers, without providing any
inventory of them and in the absence of an objec
tive witness or a valid warrant.
The right which the citizen must have enjoyed
after the coming into force of the Charter, and
which exists to the present, in regard at least to
personal papers, can be appreciated in the follow
ing definitive passage in the Hunter et al. v.
Southam Inc. case [at pages 160-1611:
A requirement of prior authorization, usually in the form of
a valid warrant, has been a consistent prerequisite for a valid
search and seizure both at common law and under most
statutes. Such a requirement puts the onus on the state to
demonstrate the superiority of its interest to that of the
individual. As such it accords with the apparent intention of the
Charter to prefer, where feasible, the right of the individual to
be free from state interference to the interests of the state in
advancing its purposes through such interference.
I recognize that it may not be reasonable in every instance to
insist on prior authorization in order to validate governmental
intrusions upon individuals' expectations of privacy. Neverthe
less, where it is feasible to obtain prior authorization, I would
hold that such authorization is a precondition for a valid search
and seizure.
It matters nothing that the personal papers, the
so-called logs shown in Exhibit 1, prattle on about
pleasant domestic and social matters such as the
quality of a meal, "Doady made Roast Beef dinner
for us all. (Great)" at page 23, or visits, "Visited
by Pam & Baby Courtney & a friend Sue John-
ston" at page 3, among many other such entries.
Nor does it matter that the recorded weather and
barometric reports were taken from The Province
newspaper, instead of readings at the place where
the Rogue was. Papers, as was stated in 1765, are
a person's dearest property and section 8 of the
Charter is aimed at preventing their unreasonable
seizure in the first place, not just the obtaining of a
judicial enquiry after their seizure as is occurring
here. Even if the citizen enjoyed playing the role of
ship's master on a 45-foot wooden cruiser with his
various "logs" of variably trivial and serious con
tents, he remains constitutionally entitled to the
protection of section 8. If the Crown's agents here
fondly believed, as Borisenko said he at least did,
that the citizen's personal papers would provide
evidence of offenses allegedly committed by the
citizen, all the more obligation for obtaining the
prior judicial or other objective permission needed
to obtain a valid warrant or other lawful authori
zation. The Charter plainly requires that.
Statutory exigency v. Constitutional imperative
Borisenko testified (transcript, at pages 694-
695), that he as a customs agent needed no war
rant, but was invested with the statutory authority
to do what he did, for which he took full responsi
bility (transcript, at page 632), by virtue of the
now repealed Customs Act's sections 11 and 231,
as they were in 1984, thus:
11. (1) The master of every vessel coming from any port or
place out of Canada, or coastwise, and entering any port in
Canada, whether laden or in ballast, shall go without delay,
when such vessel is anchored or moored, to the custom-house
for the port or place of entry where he arrives, and there make
a report in writing to the collector or other proper officer, of the
arrival and voyage of such vessel.
231. (1) All goods shipped or unshipped, imported or export
ed, carried or conveyed, contrary to this Act or to any regula
tion, and all goods or vehicles, and all vessels, with regard to
which the requirements of this Act or any regulation have not
been complied with, or with respect to which any attempt has
been made to violate the provisions of this Act or any regula
tion, are liable to forfeiture.
Although the Customs Act, R.S.C. 1970, c.
C-40, was repealed by subsection 212(3) of the
Customs Act, S.C. 1986, c. 1, the former Act
furnishes the statute law in effect at all material
times. The former Customs Act was pre-Charter
legislation. The Crown's written argument, filed
March 9, 1989, under tab 8, page 133, asserts the
following:
[Amy question as to the constitutionality of the Customs Act
as it existed at the time of the incidents, the subject matter of
the two actions, is now academic in that a new Customs Act
has been brought into force. It is submitted that none of the
three Acts referred to are in breach of the Canadian Charter of
Rights and Freedoms, either as alleged or at all.
This argument is untenable and would really
request the Court to proceed on the basis either
that there was no applicable statute law at the
material times, or that the Charter although then
fully in force, is ineffectual.
Many draconian provisions of the former Act
have been cited by the Crown. They do not need to
be recited here. After careful perusal the Court
concludes that none of them overrides the constitu
tional imperative expressed in section 8 of the
Charter so as to authorize the warrantless seizure
of the citizen's personal papers. To the extent that
any such provisions of that former statute purport
ed to authorize such an unreasonable seizure, they
are of no force and effect.
The actual seizure by Borisenko and/or his
cohort on February 1, 1984, of the citizen's per
sonal or private papers, called "ship's logs"
infringed the citizen's right guaranteed by section
8 of the Charter. The citizen never waived his
right.
The seizure of those papers constituted no "bor-
der search" as referred to in R. v. Simmons
(above) and in R. v. Jacoy. The "border search"
was effected when the Borisenko boarding party
sought, but could find no contraband in the citi
zen's possession. The Charter imperatively gov
erned the situation which former agent Borisenko
and his boarding party created on February 1,
1984, in regard to the seizure of the papers.
Section 24 of the Charter
Section 24 of the Charter contemplates the sit
uation found here. It runs:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in
the proceedings would bring the administration of justice into
disrepute.
The Court has found that Rollinson's right to be
secure against unreasonable seizure has been
infringed. That citizen has applied to this Court in
these two properly constituted actions to obtain the
remedies of damages and exclusion of the evi
dence, such as it is, provided by his said unreason
ably seized personal papers, pursuant to subsection
24(2).
The next question to be answered is whether,
according to subsection 24(2) of the Charter, "the
admission of [the wrongfully seized papers] in
the[se] proceedings would bring the administration
of justice into disrepute."
The term "administration of justice" does not
restrict itself to criminal law proceedings, for
according to section 101 of the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5] ] and amendments thereto,
these civil proceedings are based on Parliament's
view of "the better administration of the laws of
Canada", "notwithstanding anything in this [Con-
stitution Act, 1867]" [emphasis added]. These
words in the first adopted part of the Constitution
are capable of receiving and subsuming, and do
receive and subsume, the later expression "the
administration of justice" as naturally as do the
words of section 92 head 14 of the same constitu
tional documents even if the last mentioned
expression is confined to operation "within the
province" whereas the similar expression in section
101 may operate notwithstanding anything in the
Constitution.
The repute of the administration of justice
The Crown's counsel argues that even if, as the
Court finds, the manner of the seizure infringed
the citizen's rights guaranteed by the Charter, the
admission of the personal papers into evidence
would not bring the administration of justice into
disrepute. In so arguing, counsel reverts again, at
page 141 of written argument, to the Jacoy judg-
ment of the Supreme Court of Canada, and the
concept of "border searches". In that regard
Crown counsel wrote:
The [Supreme] Court held that the evidence (the cocaine)
should not have been excluded under s.24(2) of the Charter.
The evidence of the narcotics was real evidence which existed
independently of the Charter violation and its admission would
not detract from a fair trial. The Customs officers were acting
in good faith. There was a serious social evil with which the
accused was charged. Administration [sic] of the evidence
would not bring the administration of justice into disrepute.
It is submitted that similar criteria apply here. Ex. 1 is real
evidence. A sovereign nation must be able to control access to
its borders. The evidence existed independently of the Charter
violation.
This argument entirely misses the point of the
citizen's complaint. In the first place private
papers are vastly different from cocaine, and
indeed cannot be classified as any kind of contra
band. They are not generally, and despite the
citizen's playing at being a ship's master, were not
in the instant case, anything akin to "business
records", a claim not heard here on the Crown's
behalf. The Court so characterizes the citizen,
because that which he said was the genuine "ship's
log" was not produced, it having been lost, or least
never returned to him, by Borisenko. What
appears as Exhibit 1 is not business-like in the
manner of a real "ship's log". Moreover, there is
assuredly no "social evil" whatever in the citizen
keeping and having private papers, whose privacy
the common law itself has protected for centuries
from the prying eyes of minions of the State. Far
from any social evil, the privacy is in sweet accord
with what the law calls public policy.
The Crown's counsel argues that the "customs
officers were acting in good faith". Such might be
conceded in so far as they conceived that they had
the overriding right to effect a secondary border
search for contraband, but there having been none
for them to find, the concession of good faith
diminishes abruptly at that point. In resolving the
witnesses' credibility in their conflict of "hard
swearing" the Court has hereinbefore preferred
the citizen's testimony. The Court finds that,
although Borisenko in his first written account of
the seizure of the papers did indicate, in Exhibit
2(77), that he told Rollinson that the customs
agents were "required" to take away the papers —
an erroneous, or deliberate, misstatement of the
law — which the citizen well remembered in tes
timony, Borisenko purported to dress up that
wrongful seizure with accounts of Rollinson's
cooperation and willingness to press those papers
on Borisenko. Neither of the two of three customs
agents present aboard the Rogue who testified,
could remember that anything of that nature was
said between Rollinson and Borisenko. Rollinson
denies it and his testimony is preferred. The mis
statement was continued into Borisenko's testimo
ny. Borisenko's fulsome and repetitious embroider
ing of tales of Rollinson's utter willingness to part
with his papers is an egregious misstatement of
fact from which the Court draws the natural infer
ence of Borisenko's consciousness of wrongdoing.
Despite the former inspector's asserted belief that
he was empowered to seize the vessel and every
thing aboard it, he was aware that the Rogue was
the Rollinson's abode or dwelling, and the Court,
by inference, holds that he was conscious of doing
wrong in asserting that he was "required" to take
away those papers and, then, in taking them away
without so much as giving the citizen an inventory-
receipt for them. The Court, therefore, rejects the
Crown's argument about the "good faith" of its
customs agents.
There is no doubt that a sovereign nation must
be able to control access to its borders, but that
lofty principle looks gratuitous when applied to the
citizen's personal papers. That is because, by sub
section 6(1) of the Charter, this sovereign nation
guarantees the citizen "the right to enter, remain
in and leave Canada", personal papers and all.
In the Attorney General's written reply to Rol-
linson's counsel's written argument, filed April 4,
1989, the Crown's counsel virtually makes the
citizen's argument for him. Citing R. v. Rao
(1984), 46 O.R. (2d) 88, a judgment of the
Ontario Court of Appeal in which, in regard to
warrantless searches, it is said that different stand
ards applied to vehicles, vessels and aircraft
because of their mobility, counsel wrote at page 48
therein at page 121 [of Rao]:
The legitimate expectation of privacy in one's home or office
is one of the most valued rights of the individual afforded
protection by a democratic society. As Mr. Justice Lamer,
speaking for the Supreme Court of Canada, said in Descoteaux
et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860 at p. 889, 70
C.C.C. (2d) 385 at p. 410, 141 D.L.R. (3d) 590 at p. 615:
"Searches are an exception to the oldest and most fundamental
principles of the common law, and as such the power to search
should be strictly controlled."
To that, this Court responds "amen". The Borisen-
ko boarding party knew that the vessel Rogue was
that nearly elderly couple's home. They also knew,
or ought to have known, from their documentary
research and all the informers who, they said,
alleged anonymously the Rollinsons' trading in
contraband U.S. liquor, that White Rock was their
home port.
Since the common law for at least 225 years
(and longer) has enshrined the individual's expec
tation of privacy as a right, one would think that
those who administer the law, including the Cus
toms Act, would be aware of that right. Indeed the
Court infers that Borisenko was not so ignorant of
it as he later asserted, and was, on February 1,
1984, conscious of his wrongdoing in "requiring"
the citizen to hand over the latter's private papers.
Having acknowledged the distinction between a
dwelling and a mere means of transportation, the
Crown's counsel, still at page 48 of the said reply,
pointed out the very difference between seizure of
contraband and private papers, even in a dwelling-
vessel by citing this passage from Rao at page 125:
Further, a warrantless search of vehicles, vessels or aircraft,
which may move quickly away, may be reasonable where there
are reasonable grounds for believing that such contains a
narcotic. [Emphasis not in original text.]
Before he seized the citizen's private papers, Bori-
senko knew to a first-hand certainty that the vessel
contained no narcotic, or any other kind of contra
band. He, nevertheless, went on to exceed his
authority and to infringe the citizen's rights, con
scious of his wrongdoing.
The administration of justice would be brought
into disrepute, whereupon the evidence shall be
excluded
The manner of the infringement of the citizen's
right guaranteed by section 8 of the Charter — the
intimidation effected by four able-bodied men
boarding and searching their dwelling-vessel after
dark, the misstatement of the law's requirement,
the agent's consciousness of infringing the citizen's
right by dissembling and further misstatement and
all the other recited circumstances — is such that
to permit the Crown to bring about those papers'
admission in these proceedings would bring the
administration of justice into disrepute. The Court
is concerned with only these proceedings, the two
actions numbers T-560-84 and T-245-87. How
ever, in further terms of the intimidation inflicted
on that nearly elderly couple, the Rollinsons, it
may be assumed that Borisenko's boarding party's
aggressiveness could have signalled his willingness
to prosecute them for alleged offenses in and under
the Customs Act. This all happened to them in the
context of a seizure which Superintendent Langley
described as premature. Borisenko could not have
reasonably believed that the Rollinsons would
escape out to sea and never again be seen at White
Rock or any other Canadian port. The foregoing
circumstances establish that the seized papers
must be excluded, pursuant to subsection 24(2) of
the Charter.
Alternatively, excluded on common law principles
In the event that it should be held that the
remedy provided in subsection 24(2) of the Chart
er be not applicable in these circumstances, never
theless and in the alternative, the papers ought to
be, and will be excluded from the evidence in these
cases on common law principles. In effect such a
decision is taken according to principles which
themselves are exceptions to the principal princi
ple.
The principal principle is well known in Canada.
It states that material which constitutes evidence
relevant and probative to the matters in issue is
admissible and its having been obtained by
improper means does not affect either the rele
vance or the trustworthiness of the evidence. The
judge has negligible discretion to exclude such
evidence. The learned authors of The Law of
Evidence in Civil Cases, Butterworths, Toronto,
1974, deal with this principle in chapter 3 of their
work under the heading of "Illegally Obtained
Evidence" at pages 335 and following. The authors
treat this subject with considerable irony and dis
taste for it evinces neither justice nor logic. First,
however, the authors, Sopinka and Lederman, note
at page 335:
Any examination of the present law must, of necessity, deal
with criminal [law] decisions, for they are the leading ones, and
they have had considerable impact on the admissibility of such
evidence in civil cases.
The first exception: document obtained by trickery
First, regarding the exceptions, the learned
authors cite the ill-regarded and melancholy deci
sion of the Judicial Committee of the Privy Coun
cil in Kuruma v. The Queen, [1955] A.C. 197. It
can be asserted with justification that the Kuruma
judgment was the modern unintended progenitor
of section 24 of the Charter which, as analyzed
above, is the antithesis of the principal principle
which latter was enunciated with deplorable rigidi
ty in the Kuruma judgment. The judge's negligible
discretion to exclude illegally obtained evidence
was however illustrated by Lord Goddard C.J. (at
page 204) thus:
1f, for instance, some admission of some piece of evidence, e.g.,
a document, had been obtained from a defendant by a trick, no
doubt the judge might properly rule it out.
This Court considers that in the above expression
of an exception to the principle of the unconcerned
admission of relevant, but illegally obtained, evi
dence, the common law is to be discovered. Sopin-
ka and Lederman suggest at page 347 of their
opus that the discretion's existence in Canada is in
considerable doubt, as of 1974. Here the doubt
cannot continue but must be resolved. The Court
asserts the discretion.
The above expressed common law exception to
the principal rule is the basis for the Court's
decision to "rule out" the contents of Exhibit 1,
the personal papers, the so-called "logs" which
were seized from the citizen by former inspector
Borisenko on the basis of the latter's misstatement
of law to the effect that he was "required" to take
them. The Court has already found that Borisenko
was fixed with a consciousness of wrongdoing
when he misstated the law to the citizen as a
compelling reason for seizing the papers. The
quintessence of a trick, in so far as it relies on oral
or written communication, is conscious misstate
ment, or deception. On the basis, then, of the
exceptional but negligible judicial discretion enun
ciated by Lord Goddard C.J. for the unanimous
tribunal in the Kuruma case, the Court now "rules
out", or excludes from evidence the contents of
Exhibit 1, being the seized "logs" or diaries, wher
ever and whenever they are additionally tendered
in the two cases at bar.
The second exception: evidence gravely prejudicial,
of tenuous admissibility and of trifling probative
force
This matter was much considered by a pro
foundly riven Supreme Court of Canada in the
case of R. v. Wray, [1971] S.C.R. 272, in which
the Kuruma case and that of Noor Mohamed v.
The King, [1949] A.C. 182 (P.C.), as well as
Collis v. Gunn, [1964] 1 Q.B. 495, at page 501,
were carefully weighed and considered. Writing
for what appears to be the majority in the Wray
case, Mr. Justice Martland (at page 293)
expressed these thoughts:
This development of the idea of a general discretion to
exclude admissible evidence is not warranted by the authority
on which it purports to be based. The dictum of Lord Goddard,
in the Kuruma case, appears to be founded on Noor Mohamed,
and it has, I think, been unduly extended in some of the
subsequent cases. It recognized a discretion to disallow evi
dence if the strict rules of admissibility would operate unfairly
against the accused. Even if this statement be accepted, in the
way in which it is phrased, the exercise of a discretion by the
trial judge arises only if the admission of the evidence would
operate unfairly. The allowance of admissible evidence relevant
to the issue before the court and of substantial probative value
may operate unfortunately for the accused, but not unfairly. It
is only the allowance of evidence gravely prejudicial to the
accused, the admissibility of which is tenuous, and whose
probative force in relation to the main issue before the court is
trifling, which can be said to operate unfairly.
In the cases at bar the admission of the so-called
logs — the citizen's personal papers — would
without doubt operate unfairly. The purpose for
which former agent Borisenko sought, and the
Crown's counsel seeks, to utilize the papers in
Exhibit 1 would be gravely prejudicial for in real
ity their probative force in relation to the issue of
the citizen's inbound customs reports is trifling
because together and separately those papers are
quite unreliable for that purpose, rendering their
admissibility tenuous. From the Crown's point of
view, the evidential weight of the content of Exhib
it 1 is not only zero, it is negative, for it tends to
corroborate the Rollinsons' testimony (although
the papers were written more or less sporadically,
but sometimes regularly over the course of some
fourteen months prior to seizure by Borisenko),
and it tends to corroborate certain of the govern
ment's agents' recorded observations, which are
adverse to the Crown's posture herein.
His Lordship explained that the customs agent
in charge of the investigation believed that by
comparing the log notations for entering the
U.S.A. with those for returning to Canada, the
allegation of non-reporting would be substantiat
ed. But this proposition depended upon certain
assumptions, all of which were false.
There was much discussion of form E-99 — a
document to be prepared by the customs official
and issued to those reporting inbound. Plaintiff's
testimony was that the officials sometimes did not
attend at the dock and that on such occasions a
form E-99 was not received. The position taken
by counsel for the Crown was that the onus was
on plaintiff to disprove the allegations of non-
reporting by production of an E-99 for each occa
sion. The Crown did not, however, indicate any
statutory obligation for the retention of E-99
forms. There was no analogy between form E-99
and the restricted weapon certificate considered
in R. v. Schwartz, [1988] 2 S.C.R. 443. That which
was certified under the Criminal Code — the
possession of a restricted weapon — could be
for a lengthy duration while that which was per-
mitted by form E-99 was the transitory action of
entering Canada. There was no legal or logical
requirement that a citizen retain all the E-99s
issued to him.
Upon the evidence, Muldoon J. concluded that
plaintiff had been a victim of the customs inspec
tors' overwork or laxity coupled with zeal on the
part of management. The agents were either lax
or overwhelmed, middle managers were asserting
that duties were properly performed and when the
internal investigation was launched no one would
admit that there were problems. Those involved
with the West Coast customs service thought it
would be better "if the axe were to fall only on
Rollinson's neck". The Court accepted as cred
ible plaintiff's evidence in every instance where it
was in conflict with that of the Crown's witnesses.
This preference was based on the demeanour of
the various witnesses, the objective evidence and
the reasonable inferences drawn therefrom. The
Court found as a fact that plaintiff had reported
each entry to Customs but on many occasions the
officials had failed to discharge their duty of
coming down to the dock and preparing a form
E-99.
On February 21, 1984 the Rogue was seized for
a second time. This was for repairs made to her in
the U.S.A. and not reported to Canadian Customs.
Plaintiff's lawyer paid the amount demanded
"pending resolution of the matter".
On March 13, 1984 plaintiff's vessel was again
seized by officials who ordered that she not be
moved from the White Rock pier without prior
authorization. While the Rogue was thus tied up
under seizure, a severe storm occurred in which
plaintiff's wife was swept into the sea but he was
able to rescue her. The Rogue suffered damage
in this storm. Furthermore, officials threatened
plaintiff with having the Rogue towed by an
unseaworthy vessel.
Special and general damages
This third seizure of the Rogue, based on uncon-
stitutionally obtained, inadmissible and thoroughly
unreliable documents for the purpose, the citizen's
private papers, that is: based upon uncertain evi
dence of breaches of the Act, which the citizen
credibly repudiates, is an unlawful seizure ab initio
and cannot be sustained in law nor approved by
the Court. It was tortiously effected by the
Crown's servants, for which the Crown is liable to
the citizen for general and special damages, to
gether with interest thereon if the same be lawfully
available to any other successful, sui generis liti
gant of full age. Special damages, requiring fur
ther evidence no doubt will relate to the cost of
"good-as-before-the-seizure" repairs to the vessel
and any other loss or damage of and to the citi
zen's property, but including any provable
although unlikely economic loss. General damages
will be awarded as compensation for the Crown's
servants' importunity, not to forget harassment,
wrongful seizure with consciousness of wrong
doing, malice on the part of Borisenko, who in
addition to all else went to some length to preju
dice the adjudicator Marilyn Maskell and poison
her mind against the citizen in Exhibit 2(108)
where his report, covered by a "Dear Marilyn"
letter, states: "All are VERY serious charges,
demanding the utmost attention of the person
charged. All are as a result of blatant refusal by
ROLLINSON to comply with the laws of Canada!"
Borisenko is both investigator and prosecutor here,
and he takes on the role also of instructing the one
person, Maskell, who is both judge and jury. Gen
eral damages will also lie for the cavalier treat
ment of the citizen and Canada Customs' abuse of
process by seizing the vessel first on February 1,
1984, upon a singular unspecified allegation of
non-reporting which the Crown's servants conven
iently just forgot and elided it into the repairs
allegation which, when settled, was followed by a
third seizure based on the allegation of some 22
non-reports for following their own invented non-
statutory procedure for reporting, when it was in
their hands that their invented procedure so often
turned to ashes. So, wounded feelings created by
oppressive and malicious conduct by Borisenko
and his crew, amply established, and general
harassment, the terror of the storm, and the gener
al violation of rights will all generate general
damages, which after being assessed by the Court,
will be payable to the citizen by the Crown.
The Crown's posture
The Crown's witness Deszcz was examined in
chief by the Crown's counsel as to the inbound
reporting procedure in relation to which the vessel
was seized and the sum of $1,100 levied for its
release. (Exhibit 2(129)A; transcript, at page 95.)
Here is the passage in volume 1 in which Deszcz is
reported to have explained [transcript, at pages
96-97]:
Q. And turning now to ... Exhibit 2, document 130, which
purports to be a deputy ministerial recommendation ...
by Ms. Maskell under the provisions of Section 162 of the
Customs Act dealing with the March 13, 1984 seizure, is
that correct?
A. That's correct.
Q. And do you know if any other inquiries were made other
than that which is contained in the material that was
presented by either Customs or on behalf of Mr.
Rollinson?
A. Ms. Maskell did make inquiries by phone before she
made this recommendation as to the procedure for report
ing inward of vessels, that report in question. It was
determined from that phone discussion that the procedure
was that inner reports could not be made by telephone.
That is the report could be notified by phone, but the
procedure was that an officer would go to the dock in
question on every occasion and make a report.
THE COURT: Do you know anything about that procedure
in your official capacity, Mr. Deszcz?
A. No, I do not, sir.
THE COURT: So you don't know what the person reporting
his presence would or could do if the cus
toms officer did not go to the dock? He
could hardly bring the boat to the Douglas
station?
A. That's correct. I don't, I can't give you a definite answer
on that, My Lord. I'm only going by what the informa
tion we received by making the phone inquiry at the time.
And I was satisfied that that was sufficient confirmation
as to the procedure.
Now, the Court hardly needs to recite any fur
ther evidence about the customs-invented non-
statutory, ostensibly authoritative procedure for
the inbound reporting of vessels, which was in
place at all material times at White Rock pier.
What must now be recited to be appreciated is
Crown's counsel's statement in written argument
of the Crown's astounding posture in this regard.
In the initial argument of Her Majesty the
Queen, at pages 95-96, counsel wrote:
The Customs Act, R.S.C. 1970, Chap. 40, provides by
sections 11 and 18 that a person in charge of a vessel or vehicles
entering Canada must go to the Customs-House at the port or
place of entry and report.
Customs has set up a system at the White Rock pier to
accommodate incoming vessels. The policy followed by Cus
toms of dispatching Customs officers to the pier to inspect
and clear the vessel does not remove the obligation to report.
To control entries, a system was in operation whereby a
Customs form, an E99, was filled out upon entry of a vessel,
one copy handed to the Master of the vessel and the other
copy retained by Customs. At the same time, an entry would
be made in another Customs form, an E63. If the Customs
officer did not attend on the vessel, an E99 would be made
out anyway and the number of the E99 supplied to the
Master to provide him with a means of reference to allow
Customs, or the R.C.M.P., to verify that the vessel had
legally entered Canada.
Rollinson argues that the Master, in this case Rollinson, has
fulfilled his duty under the Customs Act to report inward by
simply making the phone call.
He knew, or should have known, the correct procedure and
the requirements of the Customs Act.
"None are [sic] so blind as those who will not see."
The argument runs obliviously to the inherent
contradiction between asserting the vessel's master
"must go to the Customs-House", and acquiescing
in the supposition that, "If the Customs officer did
not attend on the vessel".
After considering the citizen's counsel's written
argument, counsel for the Crown riposted by
re-stating the Crown's position, starting at page 22
of the reply, thus:
Section 11(1) makes it clear that the duty of a Master such as
Rollinson coming into White Rock harbour was as follows:
1. To go without delay to the customs-house for the port where
he entered and anchored or moored.
2. At such customs-house make a report in writing.
Clearly, Rollinson has not complied with section 11 on any of
the occasions of the alleged non-reports.
— He did not go to the Douglas Port of entry
customs-house.
— He did not there make a report in writing as required.
On the question of whether Customs officials can waive the
provisions of the Customs Act, and other matters the case of R.
v. Sun Parlor (F.C.T.D.) 1973 F.C.R. [sic] 1055 is relevant.
The provisions appear harsh but they are, in my opinion,
clear and unambiguous and while I have some sympathy for
the defendants it is clear that their failure to declare and
enter the imported goods as required by sections 18, 20, 21
and 22 ... has caused their misfortune.
It is submitted that the reasoning in Sun Parlor supra applies
to the M.V. "Rogue" which the Crown alleges has been
forfeited for failure to report inward as required under s. 11 of
the Customs Act 1970 and by reason of s. 231 of the Customs
Act set out below:
(1) All goods shipped or unshipped, imported or exported,
carried or conveyed, contrary to this Act or to any regula
tion, and all goods or vehicles, and all vessels, with regard
to which the requirements of this Act or any regulations
have not been complied with, or with respect to which any
attempt has been made to violate the provisions of this Act
or any regulations, are liable to forfeiture. [Underlining
added.]
Kong et al. v. The Queen (1984), 10 D.L.R. (4th) 226
(F.C.T.D.) Collier J. is relevant.
At pages 235-238:
Put simply: all goods, of any kind, no matter where, when, or
how acquired, no matter whether reported in writing a
hundred times before, must be reported in writing each time
any person arrives in Canada from elsewhere.
Further, the duty to report is not dependent on any question
ing, or prompting by a customs officer, as to whether any
goods are being brought in. The section requires everyone to
seek out a customs officer and to "report".
In Glisic v. The Queen (1988) [sic] 8 [sic] D.L.R. (4th) 90
[(1984), 3 D.L.R., and [1984] 1 F.C. 797] ... My colleague,
Strayer J., at pp. 92-4 said:
Thus it is the position of the Crown that, even accepting
the evidence of the plaintiff that he owned this jewellery
since at least 1967, he should have declared it when he
first arrived in Canada and on every subsequent occasion
when he returned to Canada with it in his possession
including April 7, 1980. A failure to do so makes his goods
subject to forfeiture by virtue of ss. 180(1) ...
Section 18 of the Customs Act requires a voluntary, unsolicited
written report ("declaration" in modern language).
I turn now to Grace Kong.
It was contended she had complied with the statutory
requirements when she returned to Canada in 1975. She can
didly said she could not recall whether she made a written
declaration. Unfortunately, the onus is on her to establish she
did.
In the absence of that proof, her contentions must suffer the
same fate as those of her mother. [Underlining added.]
It is submitted that section 11 is to be construed the same way
as section 18.
The administration of the Douglas port tried to accommodate
the difficulties of complying with s.11 at the Douglas port of
entry where the customs-house was several miles from the
White Rock pier.
The administration at the Douglas port arranged for a system
of reporting which would satisfy the administration. This
involved the use of Customs forms E99 as a method of verifying
reporting into Canada as required by s.11. A Customs Inspec
tor would attend on the vessel at the White Rock pier, make an
oral report and issue an E99, a copy of which was given to the
Master or person in charge of the vessel. On occasion, a
Customs Inspector could not attend and in such cases, an E99
would be issued and the identifying number of such E99 would
be supplied to such person seeking to report. The system
afforded verification to the person seeking to land and to
Customs of a report accepted by Customs.
If this Honourable Court does not agree that Rollinson on a
number of occasions failed to comply with s. 11(1), it is
submitted in the alternative, that Rollinson did not comply with
the administrative policy above outlined which would have
allowed Customs to verify that he reported the vessel to
Customs.
Under the administrative system in force at the relevant times,
the person seeking to report would have either the E99 or the
number of the E99 which would allow Customs to verify that
the vessel had been cleared by Customs.
It is submitted that s. 11 of the Customs Act was not complied
with by Rollinson. Compliance by Rollinson with the policy
outlined in Ex. 12 and in the viva voce evidence mentioned in
the preceding paragraph would have meant that seizure action
would no doubt not have been taken against the vessel. Since
that policy was not complied with, proceedings were taken. It is
submitted that there is a clear breach of s.11 by Rollinson in
the case of each of the alleged non-reports.
The Crown's argument would make duplicitous
deceivers and callous oppressors out of the customs
personnel employed at Douglas station and their
superiors right up to, if not past, middle manage
ment. They do not deserve such harsh contumely,
for they invented their non-statutory procedure,
requiring inbound mariners to telephone to Doug-
las station, out of sheer necessity. In trying to
make it operate, they failed from time to time,
because of pressure of work at the highway station
and the distance to go in order to meet an inbound
vessel, described by Toomey. They failed, from
time to time, because of the negligence, laxity,
impatience or fatigue of some of them. Threatened
as they may well have been by their superiors with
prosecution under the Act, a matter mentioned in
Crown counsel's argument, or with jeopardy to
their employment or other disciplinary measures
conjured up by the investigations by Langley and
of the internal affairs investigator, Wincherook, it
is no wonder that none of the customs inspectors
has volunteered any information or testimony
about the system's 22 alleged failures to attend in
the Rollinsons' reporting, and the couple of fail
ures to attend in Clarke's reporting.
Here, it is not clear whether the Crown is
accusing the citizen of not complying with the
signboard or with the statute. However, for the
Crown to place an official, although non-statutory
sign indicating the necessity, and indeed, the com
mand to the citizen and all others to telephone and
then to repudiate that system devised by its ser
vants, and to seize the citizen's vessel for not
complying with the Act when he tried to comply
with the sign, is an abuse of power by the Crown.
In its counsel's argument, the Crown claims that it
can, with impunity, lead the citizen and other
boaters astray from the statute by means of its
servants' official sign, and then seize the citizen's
vessel because he complied with the Crown's sign
and not with the strict provisions of the Act!
Seen clearly in the transcript, volume 2, pages
273-274, is the passage in which counsel flaunted
that abuse of power, cross-examining the citizen:
Q. Well, I'm asking whether you were familiar with the
Customs Act?
A. No, sir.
Q. You were familiar with the powers of a Customs officer
given by the Customs Act?
A. In general, yes.
Q. You were familiar with the duty to report to a Customs
house upon entry into Canada with a vessel?
A. With a vessel, I was familiar that was required to tele
phone in and report your vessel and any passengers, and
any articles that you were returning to Canada.
Q. Now, I have a copy of the Customs Act here, Mr.
Rollinson. I am certainly unfamiliar with that provision
that says you can telephone in. If you want to glance
through it you're welcome.
A. Thank you, sir, but the only instructions regarding it that
I have any knowledge of are nailed to a sign at the end of
the pier, which directs incoming vessels to telephone
Customs at that particular telephone number ascribed
[sic] there. [Emphasis not in transcript.]
The Court finds that the citizen did "invariably
and without exception" (transcript, at page 277)
report to customs in compliance with customs'
official sign requiring him to do so.
Now, the Crown purports to spring the trap.
Now, it is said that it is not good enough to comply
with the Crown's official sign, when the citizen
should have gone up along the pier and up along
the road in order to make an official, spontaneous,
written report at Douglas station, in accordance
with the provisions of the previous Customs Act. If
this were not the Crown's assertion and the
Crown's sign, but those of a private person, firm or
corporation, one would quickly characterize this
behaviour as fraud and misrepresentation. It is
beyond doubt a misrepresentation amounting to
wrongful entrapment. After all, the Crown's ser
vants in the instant matters were not, and do not
purport to have been, engaged in matters of coun
terintelligence or any kind of activity of the nature
of national emergency or State security. No inter
dicted drug dealings are alleged, either. In that
regard, and by contrast with all the foregoing
absent considerations, the Crown's posture in these
cases is all the more strange and startling. The
Crown's arguments proclaim that it is willing, with
apparent equanimity, to engage in abuse of power.
Had such deplorable State misconduct not been
all too well known in this country over the decades
since Confederation, one would be hard pressed to
account for the enactment of the Canadian Bill of
Rights, S.C. 1960, c. 44, now R.S.C., 1985,
Appendix III, or the entrenchment of the Canadi-
an Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, enacted by the
Canada Act 1982, 1982, c. 11 (U.K.). What else
but abuse of State power induced judgments based
on common law principles alone from Entick v.
Carrington (earlier cited) to Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners
of Police, [1979] 1 S.C.R. 311; and Martineau v.
Matsqui Institution Disciplinary Board, [1980] 1
S.C.R. 602?
The Special Lectures of the Law Society of
Upper Canada in 1979, considered the topic of
abuse of power. Mr. Justice Linden contributed a
paper titled "Tort Law's Role in the Regulation
and Control of the Abuse of Power", beginning at
page 67 of the De Boo Limited publication. Here,
written some three years before the entrenchment
of the Charter, are passages from chapter 3, "Con-
trol of Governmental Officials" (at pages, 73-82):
Although once immune from liability, governments have gradu
ally allowed themselves to be held civilly responsible for their
wrongful acts, despite some lingering procedural problems... .
Since the usual systems of control over these employees (train-
ing, discipline, firing, etc.) has proved somewhat imperfect, tort
law has been used as one method of combating some of the
misconduct of certain public officials. Tort law has recognized
that ordinary citizens rely for protection and advice on govern
ment employees, and that they are entitled to competent
service.
With the advent and expansion of Hedley Byrne & Co. Ltd.
v. Heller & Partners Ltd., [1964] A.C. 465, governmental
officials have also been held liable for giving negligent advice,
leading to economic loss.... A similar case is Windsor Motors
Ltd. v. Corporation of Powell River (1969), 68 W.W.R. 173
(B.C.C.A.), where liability was found when a municipal licence
inspector negligently informed the plaintiff that a certain loca
tion was suitable for an automobile dealership, when in fact the
zoning regulations prohibited such a use.... Another surpris
ingly ad'.-e case is Gadutsis v. Milne et al., [1973] 2 O.R. 503
(see also 11.1. & M. Shoppers Ltd. v. Town of Berwick (1977),
82 D.L.R. (3d) 23), where liability was imposed against a
municipality when it negligently issued a building permit,
which was later revoked, to someone who began to build in
reliance upon it. Mr. Justice Parker explained (at page 507):
` ... the employees in the zoning department of the munici
pality were there to give out information as to zoning. [They]
must have known that persons inquiring would place reliance
upon what they said. [The employee] gave out incorrect
information in the course of employment directly to the
person seeking information. Under these circumstances, I
find that the municipality owed a duty of care ... , that it
failed to discharge such duty and that as a consequence, the
plaintiffs suffered loss."
Similarly, in Couture v. The Queen (1972), 28 D.L.R. (3d) 301
(Fed. Ct.), it was decided that, if a C.R.T.C. officer's negli
gence leads a person to believe that he has a licence when in
fact he does not, and he relies on this to his detriment, liability
may be found (see [1972] F.C. 1137).
The function of negligence law is, thus, to be limited primari
ly to the review of lesser officials and the way in which they
conduct ordinary business. It will have little impact upon the
discretionary or quasi-judicial functions of the more senior civil
servants, who will remain subject to other remedies. In support
of this view, Mr. Justice Laskin suggested that "the risk of loss
from the exercise of legislative and adjudicative authority is a
general public risk and not one for which compensation can be
supported on the basis of a private duty of care. The situation is
different where a claim for damages for negligence is based on
acts done in pursuance or in implementation of legislation or of
adjudicative decrees" [We[bridge Holdings Ltd. v. Metropoli
tan Corp'n of Greater Winnipeg, [1971] S.C.R. 957; (1972), 22
D.L.R. (3d) 470 (S.C.C.).]
If senior officials, including even Ministers of the Crown,
deliberately abuse their power, and thereby cause loss to citi
zens, they may be answerable in damages.
Perhaps the most celebrated case, in this area is Roncarelli v.
Duplessis, [1959] S.C.R. 121.... The Court indicated that a
public officer "is responsible for acts done by him without legal
justification". Although there was some reliance on Article
1053 of the Civil Code, the judges treated the principle as
though it was also part of the common law.
Another well-known case is Farrington v. Thompson, [1959]
V.R. 286, where some police officers, purporting to exercise
their power under the Licensing Act which provided that
conviction of a third offence would render a licence forfeited,
required the plaintiff to close down his hotel. There was no
third conviction, according to the judge, and the jury found that
the defendants failed to exercise due care in ascertaining
whether a third conviction had been obtained. The Court
found, nevertheless, that the defendants were liable for "mis-
feasance in a public office". Mr. Justice Smith said that "if
some other public officer does an act, which, to his knowledge,
amounts to an abuse of his office, and thereby causes damage
to another person, then an action in tort for misfeasance in a
public office will lie" (ibid.; see also Molot, "Tort Remedies
Against Administrative Tribunals for Economic Loss", Law
Society of Upper Canada Special Lectures on New Develop
ments in the Law of Torts (1973), at page 425). There was
apparently sufficient knowledge of lack of jurisdiction to satisfy
the court that liability was called for.
These cases are just a few of many that require governmental
officials to exercise their power, at the least honestly and in
good faith, and at the most legally and carefully. Wide latitude
should be permitted to governmental officials in the legitimate
conduct of their activity, but the courts seem to be moving
toward holding them liable in much the same way as other
professionals.
To seize a person's vessel, especially if it be also
that person's dwelling, and to seize the same per
son's automobiles, and to hold those goods against
the exacted payment of a penalty, or outright
forfeiture, is certainly not to confer a benefit, but
rather to inflict a detriment, harm, loss or
injuriam, even if permitted by statute or judg
ment. Such are acts which impoverish and thereby
do injury to a person's estate and security. One
requires lawful authority to do this to anyone.
The same author quoted earlier herein, Mr.
Justice Linden, about a decade later, in 1988,
opens the second chapter of his fourth edition of
Canadian Tort Law with these words (at pages
31-32):
The first basis of tort liability is the intentional infliction of
harm. Where one person deliberately causes damage to
another, tort law generally requires that person to make good
the loss so inflicted. In rendering civilly responsible all inten
tional wrong-doers, tort law seeks to advance its various aims.
Individuals whose interests are deliberately interfered with
must be compensated for their losses.
[Molding intentional wrong-doers liable focusses attention on
their acts and enables citizens and government officials to react
to them, if they choose to do so.
Conduct is intentional if the actor desires to produce the
consequences that follow from his act. ... Intention, therefore,
is a concept which connects conduct with its results.
Conduct may be treated as intentional even though its results
are not actually desired, if the consequences are known to be
substantially certain to follow. ... In these circumstances it is
sometimes said that the intention is "constructive", or that it
has been "imputed" to the defendant. In other words, the
conduct is treated as though it were intentional, while strictly it
is not, because the law will not tolerate anyone being dealt with
less leniently on such facts. This is not unlike the criminal law
principle which holds that individuals are deemed to intend the
natural and probable consequences of their acts.
Given the Crown's argument to the effect that
the citizen ought to have known and complied with
the literal provisions of the previous Customs Act,
what can one make of the Crown's own sign placed
visibly on the White Rock pier, requiring inbound
mariners to telephone to the customs-house at
Douglas or at Vancouver? Does it evince the
Crown's servants' intention to entrap such persons
so that their property may be seized? Is that what
the Crown's posture in these cases amounts to? Or
does that behaviour evince a constructive inten
tion, whose consequences are sure to follow
because inbound mariners would naturally tele
phone rather than set out personally to go the
significant distance (assuming they could find the
correct direction) to the customs-house? Then, the
Crown could say, when its servants did not attend
upon the vessel, that the master did wrong by not
attending at the customs-house. In insisting upon
this line of argument, is the Crown not promoting
and admitting its servants' tortious misconduct
against the citizen? These are adversarial proceed
ings. The Crown may abandon this line of argu
ment if it so choose, prior to the next stage of this
litigation, upon which it has agreed with the citi
zen: the assessment of damages. One can com
prehend readily that the measure of special dam
ages alone on this argument, which evinces
tortious misconduct, would be the value of every
thing which the Crown has seized from the citizen
in wielding its statutory powers, because it has
misled him, or entrapped him, into not complying
with the strict requirements of the statute. That,
by the Crown's own view of these cases, is the
Crown's own responsibility, acting through its offi
cials and servants.
The rule of criminal law, ignorantia juris non
excusat, is not applicable against the citizen in the
cases at bar. As Glanville Williams has stated in
his Textbook of Criminal Law, (Stevens & Sons,
London, 1983) at page 456, the most important
limitation of the rule is that it applies only to
criminal law. Moreover, it should be noted that
Parliament did not append to sections 11 or 18 of
the previous Customs Act any provision akin to
section 19 of the Criminal Code [R.S.C. 1970, c.
C-34] then in force or akin to section 128 of the
National Defence Act [R.S.C. 1970, c. N-4], also
at all material times, then too in force. Therefore
the Crown's sign on the White Rock pier which led
the citizen and, as the evidence amply discloses, all
other inbound mariners, astray provides a good
answer and excuse against the Crown's later aston
ishing repudiation of its own published, misleading
sign with its contrastingly harsh invocation of the
literal provisions of sections 11 and 18 of the old
Customs Act.
Denial of Charter rights
This betrayal of the citizen, this tortious miscon
duct on the part of the Crown's servants, in light of
the Crown's argued position herein, could arguably
not have been permitted to succeed even before the
constitutional entrenchment of the Charter, and it
certainly cannot be permitted to succeed as of
1984, well into the era of the Charter. The provi
sions of the Charter which, being "the supreme
law of Canada", operate to relieve the citizen in
this case, both directly, and alternatively to his
common law rights against abuse of State power,
are these:
7. Everyone has the right to ... security of the person and
the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
[Admittedly, the application of section 7 may be seen to be
tenuous, but also the seizure of the citizen's dwelling surely
strikes at his "security of the person".]
8. Everyone has the right to be secure against unreasonable
search and seizure.
12. Everyone has the right not to be subjected to any cruel
and unusual treatment ....
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination ....
In regard to section 7, it is true that it does not
accord entrenched rights in and to property. There
are, however, certain kinds of property which are
of a nature to transcend that salutary general
principle and relate directly to the security of the
person: necessary drugs and medicines; a coronary
pacemaker with the power source and other neces
sary parts of the apparatus; a respirator device;
and of course, that physical property which affords
warmth and shelter and requires the State to
respect it and to enter only upon proper previous
judicial authorization, a person's dwelling; and
necessary personal clothing appropriate to the
season. Some of the above comprehend both "life"
and "security of the person". In any event, no one
is to be deprived of those transcendant kinds of
property when, at the same time they support
"life" and "security of the person", except in
accordance with the principles of fundamental jus
tice. It is manifestly contrary to all principles of
fundamental justice to lure, entrap or trick a
person into a situation contrived, not by him or
her, but by the State, in which the draconian
application of statutory or regulatory provisions
permits the State to seize that person's dwelling
not only without compensation, but upon a
demand to pay a monetary penalty to the State.
This application of section 7 appears to be novel,
but not groundless.
The breaches of the citizen's right under section
8 of the Charter have been canvassed earlier
herein. They reside in: the warrantless, unlawful
seizure of his personal papers; the harassing,
groundless, on-again, off-again first and third sei
zures of his vessel for non-reporting when, upon
the witnesses' testimony and all of the evidence,
and the reasonable inferences drawn by the Court
therefrom, the citizen has established not merely
on a balance of probabilities, but in displacement
of every civil onus of proof, that he scrupulously
and invariably followed the procedure described on
the Crown's public sign erected on the White Rock
pier; and the possibility, upon which more argu-
ment, if not evidence, will be heard that the Crown
owes him the refund, at interest, of his $312.58
upon the second, "amended seizure" for that pos
sibly unreasonable seizure of the Rogue.
The breaches of section 12 of the Charter reside
in: the bizarre boarding by Borisenko's boarding
party and warrantless seizure of the citizen's per
sonal papers; the interrogation after which the
citizen was accorded two weeks to prove that
which he was under no legal obligation to record
or prove and absent belief in his word, was unprov-
able — a negative pregnant — for the proof of
which he was directed to the Douglas customs-
house where other Crown servants mocked him for
his effort; the third seizure of his vessel after
having been told by Crown servants that it was
released; the threats to have the Rogue towed by
the inadequate and unseaworthy Deep Six oper
ated by its unsavoury master; the insensitive
threats to have the vessel hoisted ashore by inap
propriate and damaging means; the malicious
threats to have the vessel stored in an inaccessible
place ashore; the multiple seizures of the vessel;
the loss of some of the citizen's private papers,
including probably, some E-99 forms which could
have proved an inbound report or several, actually
responded to by the Crown's servants, according to
the Crown's non-statutory procedure according to
its public sign for reporting inbound at White
Rock pier; the Crown's importunity upon the citi
zen for its servants' failures to comply with its own
non-statutory system; and the Crown's servants'
tortious trickery, entrapment and misrepresenta
tion, whether intentional or negligent retrospec
tively rendered such by the Crown's repudiating
that procedure in the citizen's cases and insisting
upon invocation of the very statute of which the
Crown's procedure incited non-compliance.
The breach of subsection 15(1) resides in the
Crown's infliction of a different (if not double)
standard upon the citizen from that which per
tained over the years to all other inbound mariners
who, like the citizen, telephoned to the Douglas
station in order to report to Customs. When the
Crown's servants, in whose hands the administra
tion of the previous Customs Act was, always
considered that compliance with their non-statuto
ry directions written on their ostensibly official
public sign constituted compliance with that stat
ute and acted upon that consideration, they denied
the citizen equal protection and equal benefit of
the law by changing the rules in his case. The
Crown is not entitled in these circumstances to
create an extra-legal system with which it directs
compliance, and then, when it was discovered that
the system was inadequate due to the laxity or
overwork and fatigue of its servants, to enforce the
law not against all inbound mariners, but only
selectively against Rollinson. It is not entitled to
vent its frustration or fury upon the citizen when
its non-statutory procedure failed in his case on
some 22 occasions, but to continue to operate that
extra-legal system for the benefit (a dubious, dan
gerous "benefit" to be sure) of all others in the
same class of mariners as the citizen. To make a
scapegoat of that individual (even when his per
sonality was not liked by the law enforcers) con
stituted a breach of his right under subsection
15(1) of the Charter in the circumstances here
revealed by the evidence and the inferences drawn
therefrom. Rollinson was singled out for denial of
his "right to the equal protection and equal benefit
of the law, without discrimination".
The Court finds that the citizen's above speci
fied rights, guaranteed constitutionally by the
Charter have been infringed or denied. Being a
superior Court of competent jurisdiction estab
lished pursuant to section 101 of the Constitution
Act, 1867, this Court is bound to accord such
remedy to the citizen as the Court considers appro
priate and just in the circumstances.
Remedies accorded pursuant to section 24 of the
Charter
In regard to the seizures of the vessel, the
Rogue, the citizen's dwelling place, the Court
accords the following remedies which the Court
considers are appropriate and just in these
circumstances:
(1) A finding and declaration that the citizen's
private papers (the so-called "ship's logs" of every
kind and nature) which were seized from him on
February 1, 1984, were seized tortiously, illegally
and unconstitutionally, in denial of his rights
under section 8 of the Charter; and they are
inadmissible in these proceedings;
(2) A finding and declaration that Borisenko and
his mobile investigation unit on February 1, 1984
and by various subsequent actions and threats, and
Toomey by his mockery of the citizen, and the
Crown, by entrapping and misrepresenting, both
negligently, on the part of the customs inspectors,
and intentionally, on the part of its middle-man
agement and its law officers, tortiously crossed-up
and tricked the citizen into failing to comply with
the inbound reporting provisions of the previous
Customs Act to his loss, injury and detriment
when the Crown on two distinct occasions, Febru-
ary 1, 1984, and March 13, 1984, purported to
seize his vessel; and that all the foregoing inter
alia constituted cruel and unusual treatment;
(3) A finding and declaration that the above recit
ed first and third seizures of the vessel were unlaw
ful and will be quashed so that the vessel shall be
released, free and clear, to the citizen or his direc
tion; and that all provisions of the previous Cus
toms Act upon which the Crown based its seizures
of that vessel are and were, in the circumstances of
this case, inoperative and of no effect as against
the citizen; or in the alternative, at the Crown's
option, that the Act prevails and that the Crown is
liable upon its servants' tortious misconduct to
compensate the citizen fully for replacement value
of the seized and forfeited vessel, his dwelling, as
at and from the time it was taken from the citi
zen's possession, and control;
(4) A finding and declaration that in regard to its
seizures of the Rogue, the Crown is liable to
compensate the citizen fully in special and general
damages, and any exemplary damages which the
Court may assess for:
(a) breach and denial of the citizen's rights guar
anteed by sections 7, 8, 12 and 15 of the
Charter;
(b) harassment, mental anguish, humiliation and
inconvenience tortiously inflicted by Crown
servants upon the citizen as indicated in the
evidence before the Court, and inferences
therefrom, in the two cases herein, tried joint
ly; and
(c) interest upon such damages as are exigible
from any ordinary private tortfeasor of full
age and capacity in British Columbia, as of
and from February 1, 1984 or from such later
date as the appropriate law makes such inter
est so exigible.
Two further points relative to the assessment of
damages herein ought to be expressed. Firstly, if
the Borisenko boarding party on February 1, 1984,
were conducting a border search, upon which the
Court would hear more argument, if not also
evidence, upon assessment of damages, the Court
nevertheless holds that their presence was not an
ordinary secondary inspection which would not
necessarily attract damages. Inspector Shukin
clearly swore (transcript, at page 821) that the one
officer who inspects a vessel for clearance inbound
performs both primary and secondary functions.
The intimidating intrusion of the boarding party
alone is, in the circumstances, capable of generat
ing damages. The second point to be noted is that
punitive or exemplary damages may be awarded, if
not asked for in the plaintiff's prayer for relief.
The authority is the Alberta Court of Appeal in
Paragon Properties Ltd. v. Magna Envestments
Ltd. (1972), 24 D.L.R. (3d) 156.
His Lordship next took the opportunity to review
the evidence presented on the adjudications pro
cess in the Department of National Revenue "in
the interests of the parties and incidentally of the
public, too." The Court found that several factors
marred the adjudications process and badly com
promised its fairness. The adjudicator, in dealing
with the third seizure of the Rogue, relied on an
aide memoire, prepared by a government official,
which contained flagrant errors and misleading
information.
The Crown's seizure of plaintiff's Pontiac Pari-
sienne automobile should be set aside. Plaintiff
had driven to the primary line at Douglas station.
The Customs Inspector says she told him to open
his trunk but plaintiff drove off. The siren was
sounded but plaintiff kept going. Plaintiff's story
was that he heard neither her request nor the
siren. After travelling a short distance, plaintiff
received a CB radio message that he was wanted
back at Customs. He returned but was handed a
detention receipt and a penalty of $800 was
imposed. At trial, the Inspector testified in such a
low voice that she could hardly be heard. This
tended to corroborate plaintiff's evidence that he
had not heard her request when he was going
through Customs.
Plaintiff's claim with regard to the seizure of his
Chrysler New Yorker should be dismissed. In this
case, plaintiff did not give evidence to contradict
that of the Customs Inspector who was subjected
to but a desultory cross-examination which
served only to confirm her testimony in chief. Her
testimony, that plaintiff disobeyed her order to
report to secondary, was corroborated by other
witnesses.
Plaintiff was awarded costs on a solicitor-and-
client basis with an abatement of 6% of counsel
fees since he did not succeed as to the Chrysler
seizure.
Application may be made to the Associate
Chief Justice regarding the assessment of dam
ages unless the parties can reach agreement
between themselves in which event that would be
ratified by the Court.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.