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Application for Restoration of Articles Seized in the Supreme Court of Nova Scotia, Digby, Nova Scotia, December 7, 1998

In the matter of an application for an order restoring to the possession of the applicants articles seized pursuant to three search warrants on November 13, 1996.

And in the matter of sections 2(b), 8, 10(b) and 24 of the Canadian Charter of Rights and Freedoms and in the matter of an application for certiorari between: Her Majesty the Queen, Constable M.E. Furey, a member of the Royal Canadian Mounted Police, and Louise Hamilton-Delaney, a Justice of the Peace for the province of Nova Scotia respondents and Stanley H. Leblanc, Sr., Stanley J. Leblanc, Jr., and circuits your Home and Car Entertainment Centre Ltd. applicants and between: Her Majesty the Queen, Constable M.E. Furey, a member of the Royal Canadian Mounted Police, and Louise Hamilton-Delaney, a Justice of the Peace for the province of Nova Scotia respondents and David Lloyd Williams and Williams Electric applicants

HEARD: At Yarmouth, Nova Scotia, on the 29th day of January, A.D. 1998; submissions received April 24, 1998 and June 4, 1998

BEFORE: The Honourable Justice Charles E. Haliburton
SUBJECT: Application for Costs

DECISION: The 7th day of December, A.D. 1998

COUNSEL: Raymond B. Jacquard, Esq., for the respondents Ian W.M. Angus, Esq., and Philip J. Star, Esq., for the applicants

Supplementary Decision re Costs

Haliburton, J.:

The accused persons were successful on a pre-trial application to quash search warrants in relation to these matters. They seek an Order for Costs against the Crown.

I agree with the representations of Crown Counsel that "Costs should only be awarded in the clearest of cases and should be a rare and exceptional remedy".

I have come to the conclusion that this is one of those rare and exceptional cases where misconduct is clear and the rights of citizens deliberately abused.

The accused were prosecuted under Section 327 of the Criminal Code for the possession and/or sale of devices intended to obtain telecommunications signals, specifically, international television signals emanating from satellite transmitters. It is reasonably clear that the investigation/prosecution was initiated to further the economic interests of a television distributor located in the U.S.A. This corporation, it appears, was entitled to charge recipients of its signal in the U.S.A. and on the application, there was pretty good evidence that they were bootlegging the signal into Canada. Except as "reasonably limited" by law, the possession of equipment to receive an American signal would be indistinguishable from the possession of equipment capable of receiving a signal broadcast from any other foreign country. Section 2 of the Charter of Rights guarantees to all Canadians the right to receive such signals.

The Criminal Code, Section 327, makes it an offence to possess such equipment for the purpose of receiving such a signal for which there is a "lawful charge". This section serves to further the objectives of the Radio Communication Act to protect Canadian Broadcasters who have been authorized to charge for their signals by the appropriate authorities within Canada and under the aegis of the C.R.T.C. in furtherrance of its mandate to regulate Canadian broadcasting and content.

When this prosecution was initiated, there were two schools of thoughts disclosed in the decided cases, none of which had reached the Appeal Court level. In view of that division of opinion, however, it must have been evident to the authorities that the possibility of a conviction would be speculative at best. Ultimately, the Federal Court of Appeal concluded that the possession of such equipment did not constitute an offence under Canadian Law.

Counsel for the three Accused parties, in support of their Petition for Costs against the Crown, represents that a partial accounting of the expense incurred by the three accused, with respect to the quashing of the search warrants only, totals $15,360.36. I note these accounts are rendered by out-of-province Counsel only. I am given to understand that the ultimate account for both Counsel and for all the legal services involved will come to substantially more than that figure.

I did comment in the course of hearing Counsel that the persons involved obviously knew that they were involved in a so called "grey market" and must have understood that there were some "business risks" to be considered.

The Cases

A number of cases have been cited by Crown Counsel. I am referred to R. v. Jedynack, (1994) 16 O.R. (3d) 612 (Ontario C.A.), where the Court expresses the view that costs should be awarded only where the conduct of the authorities amounts to something well beyond inadvertent or careless failure ... conduct ... within the realm of recklessness, conscious indifference to duty ... a marked and unacceptable departure from the usual and reasonable standards of prosecution ... (resulting in) an undisputed and clearly measurable infringement or denial of a right (and) ... serious prejudice to the accused.

Trask v. The Queen (1987), 37 C.C.C. (3d) 92 suggests no costs should be allowed in the absence of "oppressive or improper conduct".; R. v. Brown Shoe Co. of Canada Ltd. (No. 2) (1984), 11 C.C.C. (2d) 514 would require "negligence or misconduct"; and R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 repeats "oppressive and improper conduct".

Conclusions

It is and should be a most unusual circumstance when costs are awarded against the Crown. However, that proposition flows from the dearly held tradition in our society and in law that no citizen will be confronted with a search warrant or a prosecution except when there are reasonable and probable grounds to believe they have committed an offence and that the offence can be proven. The immunity of the Crown is further premised upon the basis that criminal prosecutions are initiated in furtherance of the public interest and not in furtherance of private commercial interests. Further, it is premised upon the assumption that accused persons will be presumed innocent until tried and convicted. Trial and conviction by media cannot be tolerated, let alone encouraged.

I reluctantly conclude that the conduct of the police authorities in this case was designed to prejudice the business interests of the accused and to destroy their reputations in their respective communities and had, in fact, serious impact on their businesses. There was no inadvertence or carelessness displayed in what had the appearance of being a carefully planned operation intended to shut down significant portions, if not all, of the business operations of the accused. In addition, there is clear evidence that the searches, which were not justified in law and which, in fact, were unecessary to the success of a prosecution, were carried out in an oppressive manner.

It is apparent thtat the rights of the accused under both Section 2 and Section 8 of the Charter of Rights and Freedoms were abridged.

To recap:

The search and seizure and the prosecution undertaken for the purpose of procuring a conviction in relation to a law which was, at best, unclear, rendered such a conviction doubtful, even if all allegations were proved.

The search and seizure were unnecessary to the prosecution because sufficient evidence of the factual basis for the prosecution was already in the possession of the R.C.M.P. officers who had, themselves, purchased the impugned equipment. A number of other customers/witnesses were known to them and readily available.

The prosecution was initiated at the request of and in furtherance of commercial interests and foreign entities and not in furtherance of any Canadian public interest.

The search and seizure were highly and deliberatley publized and such publicity readily supports the inference that a primary objective was to destroy the business reputations of the parties.
This is one of those rare and unusual cases where costs may properly be awarded, whether to control the processes of the Court or in pursuance of Section 24(1) of the Charter. On the basis of representations from Counsel and from the accused who appeared in Court in relation to the costs issue, bearing in mind that the amount of costs I intend to order will leave substantial fees to be paid by the three accused from their own resources, I fix the amount of costs to be awarded at $15,000.

Digby, Nova Scotia, December 7th, 1998.

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