It is a very long document, but it is important at this stage.

The search warrant was issued by a Judge of the Provincial Court in St. John on June 26,1996. The warrant authorized the seizure of circuit boards, DIRECTV access cards, and numerous business records. RCMP Constable Louis Plourde had sworn the information to obtain a warrant that :

he has reasonable grounds to believe that: (the applicants) Ronald W. King and King T.V. and Satellite Inc. are selling components (that) are being used for an unlawful purpose, namely to provide customers with access to an encrypted satellite signal in contravention of paragraph 9 (1) (c) of the Radio Communications Act (Radiocommunication Act R.S.C. 1985 c. R-2).

3. In so doing Ronald W King and King T.V. and Satellite Inc. have committed and are continuing to commit the following offenses between 13 December 1994 and 26 June 1996:

I) Without lawful excuse selling or offering for sale a device or component , the design of which renders it primarily useful for obtaining the use of a telecommunication service under circumstances that give rise to a reasonable inference that the device was intended to be used to obtain the use of any telecommunication service or facility or service without payment of a lawful charge contrary to Subsection 327(1) of the Criminal Code,

ii) possession of equipment or devices or components thereof that allow without lawful excuse, for the decoding of an encrypted subscription programming signal on an encrypted network feed other than under and in accordance with an authorization from the lawful distributor of the signal or feed in contravention of paragraph 9 (1) (c) of the Radio Communication Act and thereby committed an offense under paragraph 10 (1) (B) of the said act.

As part of his grounds for his belief, Cat. Plourde had attached a copy of promotional material that reads as follows:
Any person with a RCA DSS Satellite system can have the card installed and receive everything, and I mean everything. USSB, DIRECT TV, all the PAY PER VIEWS, MOVIES, SPORTS, and SPECIAL EVENTS. Check your program guide. Scroll through it and see what you are missing. SPECIAL PRICE $895.00 can. with 1 year warranty to update master. KING T.V. & Satellite inc. SUSSEX, N.B. 40 years in the business 1-800-797-5111
Also Cst. Plourde had recounted in that information how Ronald King of King T.V. and Satellite Inc. in Sussex, N.B. on June 14, 1996 had demonstrated the capability of a card to decode encrypted signals broadcast on the Radio Corporation of America direct-to -home Digital Satellite System. Cst., Plourde also said that Mr. King had told him that he had been the distributor for the Maritime region for three months; that these cards would "never be legal"; that he could give Cst. Plourde a card for $900.00, G.S.T. included; he would reprogram the card for free for a period of one year; and that he had five cards on hand and was expecting 50 more.
Cst Plourde said he then purchased from Mr. King a DSS access card; that card "bears no resemblance to the genuine card"; and that "I would describe the card I purchased as a 'clone'".

The search warrant was issued on June 26, 1996. It did not authorize just the seizure of "Green non-genuine access cards" and evidence of their purchase and sale. It authorized seizure of what Mr. King calls "all of my company's records, computers, other equipment and materials, bank records and silent lists with respect to the operation of my business".

The search warrant was signed by a Judge of the Provincial Court and was as follows:

CANADA - PROVINCE OF NEW BRUNSWICK

WARRANT TO SEARCH

TO THE PEACE OFFICERS IN THE SAID PROVINCE OF NEW BRUNSWICK WHEREAS it appears on the oath of Cst. Louis PLOURDE, a member of the Royal Canadian Mounted Police stationed in Saint John that there are reasonable and probable grounds to believe that the following things, to wit:

"printed circuit boards", finished "Green" non-genuine access cards, genuine DIRECTV access cards, Integrated Receiver Decoder (IRD), Atmel Microprocessors, Dallas 5002 micro controllers, 3-M lithium batteries, oscillator clock, capacitors, resistors, shipping documents pertaining to the movement of electronic components, financial records such as monthly account statements, transfer documents pertaining to transfer of funds, daily journals, cash receipts, deposit slips, canceled cheques, withdrawal slips, monthly credit card account statements, copies or duplicates of the above, customer and service account documents including purchasing and consignee documents, telephone account statements, daily diaries, address books, notes, loan agreements, promissory notes, records of purchase, mortgage, chattel mortgages, schematic diagrams and photographs of electrical components, along with associated engineering notes, microfilm and records stored in electric form upon data storage media, computer equipment in or upon which any of the aforementioned classes of documents are stored, and/or any other documentation relating to the said offenses, all of which are being sought as evidence with respect to the commission of the following offenses by Ronald W. KING, and by King T.V. and Satellite Inc. between the 13th December 1994 and the 26th of June, 1996.

i) without lawful excuse selling or offering for sale a device or component, the design of which renders it primarily useful for obtaining the use of telecommunication service under circumstances that give rise to a reasonable inference that he device was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge contrary to Subsection 327(1) of the Criminal code.

ii) possession of equipment or devices or components thereof that allow without lawful excuse, for the decoding of an encrypted subscription programming signal on an encrypted network feed other than under and in accordance with an authorization from the lawful distributor of the signal or feed in contravention of paragraph 9(1) of the Radio Communication Act and thereby committing an offense under paragraph 10(1)(b) of the said Act.

Are in the premises described below.

This is, therefore, to authorize and require you to enter the aforesaid premises and search for the said things between 0800 hours of the 26th day of June A.D., 1996 and 2000 hours of the 26th day of June, A.D. 1996, to enter the said premises of King T.V. and Satellite Inc. and the residence of Ronald W. KING located at 55 Park St. in Sussex, New Brunswick and the vehicles of Ronald W. King a 1989 Chevrolet Blazer, NBL CBS 848, registered to Ronald KING and a 1990 Plymouth Voyager Van, NVL "King IV". registered to Ronald King and to search for the said things and to bring them before me or some other justice.

DATED this 26th day of June 1996 at the city of Saint John

As a result of the seizure Mr. King says that his business, which had been "grossing approximately $20,000.00 - $25,000.00 per month, has ground to a halt, necessitating the layoff of employees". He says that has affected his "debt repayment and financing" and has "grossly affected the livelihoods of my employees". No charges have been laid.
This application to quash the search warrant was filed on August 13, 1996. In his affidavit in support Mr. King says that Power DIRECTV had been authorized by the Canadian Radio-television and Telecommunications commission to broadcast to Canadian customers the direct-to-home signals of an American corporation, DIRECTV, but had not done so,
An Act of Parliament has established a Broadcasting Policy for Canada and vested extensive regulatory authority in the CRTC. Broadcasting Act, R.S.C. 1985, c B-9.01.

Counsel for the applicants also points to a story in the Globe and Mail newspaper on August 28, 1996 that Star choice has recently won a CRTC license for a direct-to-home satellite television service. It hopes to offer the service in "four to six months". According to that newspaper story that service:

. . . will also have to be competitive with the so-called grey market. An estimated 175,000 to 200,000 Canadians are receiving direct broadcast satellite services from the United States that are not regulated by the CRTC.

Radiocommunication Act

The Radiocommunication Act includes the following provisions that appear to apply to this case:

2 In this Act,

"broadcasting" means any radiocommunication in which the transmission are intended for direct reception of the general public; "encrypted" means treated electronically or otherwise for the purpose of preventing intelligible reception; in relation to an encrypted subscription programming signal or encrypted network feed, means a person who has the lawful right in Canada to transmit it and authorize its decoding; "network feed" means any radiocommunication that is transmitted

(a) by a network operation to its affiliates,
(b) to a network operation for retransmission by it to its affiliates, or
(c) by a lawful distributor to a programming undertaking,

"radio apparatus" means a device or combination of devices intended for, or capable of being used for, radiocommunication;

"radiocommunication" or "radio" means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3000 Ghz propagated in space without artificial guide;

"subscription programming signal" means radiocommunication that is intended for reception either directly or indirectly by the public in Canada or elsewhere on payment of a subscription fee or other charge.

No person shall, except under and in accordance with radio authorization, install, operate or possess radio apparatus, other than:

(a) radio apparatus exempted by or under regulations made under paragraph 6 (1) (m); or
(b) radio apparatus that is capable only of the reception of broadcasting and that is not a distribution undertaking.

. . .

9(1) No person shall
(c) decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in distributor of the signal or feed;
(d) operate a radio apparatus so as to receive an encrypted subscription programming signal or encrypted network feed that has been decoded in contravention of paragraph (c);

10(1) Every person who

(a) contravenes section 4 or paragraph 9 (1) (a) or (b),
(b) without lawful excuse, manufactures, imports, distributes, leases, offers for sale, sells, installs, modifies, operates or possesses any equipment or device, or any component thereof, under circumstances that give rise to a reasonable inference that the equipment, device or component has been used, or is or was intended to be used, for the purpose of contravening section 9,
is guilty of an offense punishable on summary conviction and is liable, in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year, or to both, or in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.
10 (2.3) No person who decodes an encrypted subscription programming signal in contravention of paragraph 9 (1) (c) shall be convicted of an offense under that paragraph if the lawful distributor had the lawful right to make the signal available, on payment of a subscription fee or other charge, to persons in the area where the signal was decoded but had not made the signal readily available to those persons.
10 (2.4) Nothing in subsection (2.3) shall constitute a lawful excuse for any person to manufacture, import, distribute, lease, offer for sale or sell any equipment or device, or any component thereof, in contravention of paragraph (1) (b).
10 (4) Where a court of competent jurisdiction is satisfied, on application by the Minister, that an offense under paragraph (1) (a) is being or is likely to be committed, the court may grant an injunction, subject to such conditions as the court considers appropriate, ordering any person to cease or to refrain from any activity related to that offense.
13 (1) in the case of a conviction for an offense under paragraph 10 (1) (a), any radio apparatus in relation to which or by means of which the offense was committed may be forfeited to Her Majesty in right of Canada by order of the Minister for such disposition, subject to subsections (2) to (6)m, as the Minister may direct.

Criminal Code

The Criminal Code has several provisions that appear to relate to issues in this case, including the following:
6(1) Where an enactment creates an offense and authorizes a punishment to be imposed in respect of that offense.
(a) a person shall be deemed not guilty of the offense until he is convicted or discharged under section 736 of the offense; and
(b) a person who is convicted or discharged under section 736 of the offense is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offense.

12 Where an act or omission is punishable under more than one Act of Parliament, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offense.

21 (1) Every one is a party to an offense who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

21(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offense, each of them who knew or ought to have know that the commission of the offense would be a probable consequence of carrying out the common purpose is a party to that offense.

. . .

326(1) Every one commits theft who fraudulently maliciously, or without colour of right,
(a) abstracts, consumes or uses electricity or gas or causes it to be vested or diverted; or
(b) uses any telecommunication facility or obtains any telecommunication service.

326(2) In this section and in section 327, "telecommunication" means any transmission, emission or reception of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, or other electromagnetic system.

327(1) Every one whom without lawful excuse, the proof of which lies on him, manufactures possesses, sells or offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor, is guilty of an indictable offense and liable to imprisonment for a term not exceeding two years.

327(2) Where a person is convicted of an offense under subsection (1) or paragraph 326(1)(b), any instrument or device in relation to which the offense was committed or the possession of which constituted the offense, upon such conviction in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.

334 Except where otherwise provided by law, every one who commits theft
(a) is guilty of an indictable offense and liable to imprisonment . . . .

487(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offense against this Act or any other Act of Parliament has been or is suspected to have been committed.
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission will afford evidence with respect to the commission of an offense, or will reveal the whereabouts of a person who is believed to have committed an offense, against this Act or any other Act of Parliament, or
(c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offense against the person for which a person may be arrested without warrant may at any time issue a warrant under his hand authorizing a person named therein or a peace officer
(d) to search the building receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of Parliament, to, as soon as practicable, bring thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1

Charter Acts of Parliament such as the Radiocommunication Act and the Criminal Code are subject to the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. It includes:

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2 Everyone has the following fundamental freedoms;
(B) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(8) Everyone has the right to be secure against unreasonable search and seizure.

11D Any person charged with an offense has the right
(D) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

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.
24(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 the circumstances the admission of it in the proceedings would bring the administration of justice into disrepute.

Proof of Reasonable Inference Beyond a Reasonable Doubt

Both section 10(1) (b) of the Radiocommunication Act and section 327(1) of the Criminal Code use the phrase "under circumstances that give rise to a reasonable inference that" the object will be used for some illegal purpose. That suggests a possible "Reverse Onus" that could offend the presumption of innocence in the Charter. R. v. Oakes, (1986) 1 S.C.R. 103, at pp. 119-120; 132-133.
Under the influence of the Charter, the Supreme Court of Canada has interpreted similar wording regarding inferences about house-breaking instruments as requiring that he inference be proven a reasonable doubt. R. v. Holmes, (1988) 1 S.C.R. 314.
That sort of interpretation is favorable to an accused. It has also been applied in a case involving possession of cable TV decoders in R. v. Fulop (1988), 46 C.C.C. (3d) 427, affirmed (1990) 3 S.C.R. 695.

No Authorization, No Lawful Distribution, No Lawful Charge

As noted, Parliament has enacted fairly broad legislation that attempts to make it illegal to operate or possess any equipment for the reception of any radiocommunication transmissions that are not "intended for direct reception of the general public". Also Parliament has attempted to make it specifically illegal to decode encrypted television signals without "authorization from the lawful (CRTC approved) distributor" in Canada or "without payment of a lawful (CRTC approved) charge therefore"

If there is no lawful distributor actually distributing in Canada, such authorization cannot be obtained and lawful charges cannot be paid. Thus in such a situation, counsel for the applicant says in effect there is no lawful distributor Canada to be defrauded and thus no offense can be committed. Counsel for the respondents says in effect that if there is no lawful distributor in Canada, then the decoding was done without appropriate authorization and is absolutely prohibited.
That question has been dealt with in Manitoba by the provincial court and the Court of Queens Bench, but left undecided by the Court of Appeal. The conclusion at trial, affirmed by the Court of Queens Bench, was that:
Allowing signals to be decoded in Canada, which are not authorized in Canada does in fact harm the lawful distributors in Canada who offer the same type of programming.

Where there is no lawful distributor in Canada, there is an absolute prohibition of decoding encrypted subscription programming signals
R. v Open Sky Inc. (1994) M.J. No. 734 Para 36 (prov. Ct.); affirmed (1995) M.J. No. 530 (Q.B.); leave to appeal dismissed on other grounds. (1996) M.J. No. 208 (C.A.)
That interpretation in Open sky may be correct. However at this stage of the case, I will follow the lead of Lyon J.A. of the Manitoba Court of Appeal and leave that point undecided.

Freedom of expression, Unauthorized clones of decoding cards.

An opinion on the Canadian system of regulation of satellite television was expressed in a letter from Chris Preston of Victoria B.C., published in the Report on Business of the Globe and Mail on September 9 1996. Mr. Prestons letter is headlined "Cable Firms Coddled" and includes the following:
I don't need Ted Rogers, Keith Spicer or the CRTC to tell me what I can watch. Suppose you were told what books to read at the library or what books to buy at the bookstore:.... There are hundreds of channels flying around above our heads, yet we are told what channels we should be watching.

Mr. King and his business appear to serve members of the public who may agree with Mr. Preston. The Ontario Court of appeal in a decision written by Tarnopolsky J.A. has indicated support for such a broad interpretation of the freedom of expression in the following words:

...................freedom of expression under the Charter must extend to all forms of expression. I would like to add that this applies to all phases of expression, from maker or originator through supplier, distributor, retailer, renter, or exhibitor to receiver whether as a listener or a viewer. This view of the ambit of s. 2(b) of the Charter is supported by the more fully defined but comparable art. 19 (2) of the Covenant on Civil and Political Rights.

Article 19

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

R.v. Videoflicks Ltd. (1984) 15 C.C.C. (3d) 353 at p. 389-390, affirmed on other grounds, (1986) 2 S.C.R. 713

The Supreme Court of Canada has also interpreted the freedom of expression clause very broadly. That court struck down federal legislation that banned advertising of cigarettes. A majority of the members of that court felt that such laws violated the freedom of expression and were not demonstrably justified in a free and S.C.R. 199.

Thus if Mr. King and his business are prosecuted the breadth of the Canadian "freedom of .... expression, including freedom of the .....other media of communication" will be an issue. It may well be argued that the right of the public to have help from people like Mr. King to watch American television from space despite Canadian laws to the contrary, is a much more modest example of freedom of expression than advertising of cigarettes.

Such a freedom may be similar to the once disputed freedom behind the Iron Curtain to receive The Voice of America and Radio Canada International.

On the other side I would anticipate arguments that access to more television is not similar to access to more books, but "may lead to hasty jettisoning of hard won gains of civilization with the continuation of Western Man " and our free and democratic Canadian Society.
In a 1951 case dealing with technical standards for colour television, Mr. Justice Frankfurter of the Supreme Court of the United States expressed such views. In twenty different cases since 1985 the Supreme Court of Canada has cited other cases and comments of Frankfurter J. In the colour television case he said:

Doubtless, television may find a place among the devices of education; but much long-headed thought and patient experimentation are demanded less uncritical use may lead to hasty jettisoning of hard-won gains of civilization. The rational process of trial and error implies a wary use of novelty and a critical adoption of change. When a college head can seriously suggest, not by way of irony, that soon there will be no heed of people being able to read - that illiteracy will be the saving of wasteful labor - one gets an idea of the possibilities of the new barbarism parading as scientific progress.

Man forgets at terrible cost that the environment in which an event is placed may powerfully determine its effect. Disclosure conveyed by the limitations and power of the camera does not convey the same things to the mind as disclosure made by the limitations and power of pen or voice. The range of presentation, the opportunities for distortion, the impact on reason the effect on the looker-on as against the reader-hearer, vary; and the differences may be vital. Judgement may be confused instead of enlightened. Feeling may be agitated, not guided; reason deflected, not enlisted. Reason - the deliberative process - has its own requirements. Met by one method and frustrated by another.

What evil would be encouraged. What good retarded by delay? By haste, would morality be enhanced, insight depended, and judgement enlightened?

Radio Corp. of America v. United States - 341 U.S. 412 at pp. 425-426 - (illegible).

Similarly, in 1972 Professor Marshall McLuhan of the University of Toronto summarized his concerns about television as follows:

If television is going to strip us of our civilized individuality, of our separate selves, then we should close down TV. Because, as far as I know, television is incompatible with the continuance of Western man.

Essential McLuhan, edited by Eric McLuhan et al., Anansi Press, Concord, Ontario, 1995, p. 294.
As noted earlier, the presumption of innocence in the Charter has resulted in an interpretation favorable to an accused of the "reasonable inference" clauses. In the same way, the freedom of expression may influence the interpretation of the "without authorization" and "without payment of a lawful charge" clauses.

Thus there appears to be arguments that the use or sale of unauthorized clones of RCA DSS decoding cards to watch encrypted direct-to-home satellite television may be legal in some circumstances in Canada.
If such decoding card clones are eventually found to be legal, it would not be the first time that the laws of Canada or of the United States have permitted clones to compete with the genuine original product. Examples include "clones" of Marconi wireless, Bell telephones, Bayer aspirin, IBM computers and Intel chips.

Unresolved Legal Questions

If Mr. King and his company are prosecuted, legal questions relating to the absence of lawful distributors in Canada, freedom of expression and the legality of clones, may have to be answered.
At this stage of this case I think those legal questions must be kept in mind deciding whether the search and seizure on June 26, 1996 was reasonable or unreasonable.

Reasonable or Unreasonable Search/Seizure

As noted, Mr. King and his company have Charter rights "to be secure against unreasonable search or seizure" and "to be presumed innocent until found guilty".
Because of the breadth of the seizure under the warrant to search, Mr. King and his company were in effect punished before they had their day in court.
Instead of getting that search warrant, the RCMP could have simply charged Mr. King and his company with selling an allegedly illegal decoding card to Cst. Plourde. If that charge had been laid the legal and Charter issues could have been dealt with by the courts before Mr. King and his company were punished by the extensive seizure.
If a search were really necessary, most relevant items could have been immediately photographed or copied on site, rather than being taken away. In the Open Sky case such evidence was apparently only photographed, not seized. Chartier P.C.J. said:

On May 17th, 1993 photographs were taken of the premises which showed amongst other things, the following:

1. 45 decoder modification boards located at the premises;

2. an EPROM eraser;

3. EPROM burners; and

4. numerous items, which were identified as paraphernlia necessary to modify satellite decoders. R. v. Open Sky Inc., (1994) M.J. No. 734 at paragraph 9.
In this case if at any time the police and the Minister of Communications feel that some specific part of Mr. King's business should be stopped, the Minister may apply for an injunction under S. 1014 of the Radiocommunications Act. A hearing would then have been held in court, before any sanctions might have been imposed.
Such careful, specific and proportional steps were not taken. Instead, to try and enforce "grey law" against "grey market" parts of Mr. King's business, the RCMP raided him. They seized what Mr. King calls "all of my company's records, computers, other equipment and materials, bank records and client lists with respect to the operation of my business". This raises "proportionately" a test of validity of government action. Lamer C.J. said the:
. . . test involves balancing a number of factors to determine whether the means chosen by the government are proportional to its objective. As Dickson C.J. stated in Edward Books and Art Ltd. ({1986} 2 S.C.R. 573) at p. 768.

Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirements in (illegible) aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights. Irwin Toy v. Quebec, (1989) 1 S.C.R. 927 at p. 991.
Also the impact on the subject of a search and seizure has to be considered. The Supreme Court of Canada has said:
. . . an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on its "reasonable" or "unreasonable" impact on the subject of the seizure, and not simply on it rationality in furthering some valid government objective. Hunter v. Southam Inc., (1984) 2 S.C.R. 145, AT P. 157.

The Supreme Court has also emphasized the word "reasonable" in section 6 of the Charter as follows:
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. R. v. Collins, (1987) 1 S.C.R. 265 at p. 278; R. v. Garofoli, (1990) 2 S.C.R. 1421. at p. 1451.

In my opinion the search warrant issued on June 25, 1995 and the search and seizure on that date on the applicants Ronald W. King and King T. V. and Satellite Inc. were not proportional to the situation. I find the warrant, the search and the seizure violated their "right to be secure from unreasonable search and seizure" within the meaning of s. 8 of the Charter.

In these circumstances under the authority of s. 24 of the Charter, I consider that it would be appropriate and just to quash the search warrant and to grant related relief.

The applicants also ask that I prohibit "further proceedings with respect to the said warrant or the oath in respect of which it was issued". I am not convinced that such an order would be appropriate or just at this time. Except as noted in the following paragraph, this decision is without prejudice to the rights of any party to commence any legal proceeding or to raise any defenses.

For these reasons, I order that the search warrant be quashed; the items seized (and all copies made) from Ronald W. King and King T.V. and Satellite Inc. in Sussex, N.B. on June 26th, 1996 are to be returned to them within seven days; and that neither the RCMP, nor the Attorney General of Canada nor the Minister of Communications, may use or retain directly or indirectly any of the evidence that came to their attention as a result of that illegal search and seizure.