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Writs of Assistance

Summary

The Writ of Assistance is a special type of search warrant, issued under the authority of any one of four federal statutes: Customs Act, Excise Act, Narcotics Control Act, and the Food and Drugs Act. It:

  1. Can be issued only by a Judge of the Exchequer Court, but requires no judicial decision of that judge.
  2. Once issued, may lawfully be used until the person to whom it was issued (usually an RCMP officer) has died or retired.
  3. Writs issued under the various Acts are limited in their use to the specific areas authorized by the four statutes.
  4. Writs may be executed in any part of Canada, and in some cases may be transferred from one officer to another in the same Department without even a name change.
  5. The officer executing the Writ has authority to take whatever assistance and to use whatever physical force he or she judges necessary. There is no statutory requirement that property damaged or destroyed in a search must be repaired or restored.
  6. Writs that authorize searches for narcotics or controlled drugs also give limitless power to search all persons found on the premises.
  7. There is no restriction as to date, time, or place of search.

The BCCLA’s objections to this legislation are:

  1. The requirement that Judges of the Exchequer Court must grant these writs without being empowered to make a judicial decision. If the issuance of a Writ is to be a mere clerical function, then it should be performed in that way by the Commissioner of the R.C.M.P. or the Chief Collector of Customs.
  2. The need for such Writs may be seriously questioned. The purposes for which they are used are already provided for adequately in the Income Tax Act and the four other Acts already referred to.

The concept that a man’s home is his castle has probably never been more than that—a concept, a fine idea, a noble dream.

Generally speaking, there are two situations in which a citizen’s home can be legally entered (provisions of civil law, such as landlord end tenant legislation, are not under consideration in this paper). One is the search warrant for which the Criminal Code provides (see particularly section 429). The other is the Writ of Assistance, which is a very special kind of search warrant issued under the authority of any one of four federal statutes: The Customs Act, the Excise Act, the Narcotics Control Act and the Food and Drugs Act.

To understand the full implications of writs of assistance, from the civil libertarian point of view, a comparison with ordinary search warrants is helpful.

Issuing an ordinary search warrant is a judicial act. This fact is important because it implies recognition, by the law, of the need to protect citizens from arbitrary police behaviour. Such warrants are normally issued by a Justice of the Peace. Before issuing a Writ, he or she must be satisfied that there are reasonable grounds to believe an offence has been committed in the place to be searched, or that certain other crime-oriented situations exist. Moreover, the person who seeks the warrant (usually a police officer) must pledge his or her oath that he or she believes reasonable grounds exist. These requirements mean that a Justice of the Peace may not lawfully grant a search warrant until he or she has applied his or her mind to the circumstances and is satisfied that they correspond with the requirements of the Criminal Code.

Once issued, a search warrant is good only for the specific search that it authorizes. The protection that these requirements afford to the citizen is obvious.

It is otherwise with Writs of Assistance. These legal aberrations are the creatures of the four statutes that conjured them into existence. They bear no relationship to the English Writs of Assistance that originated in the Courts of Equity as a rare method of enforcing judgments in civil cases. They have given rise to very little case law, presumably because questioning them in the courts is likely to be an exercise in futility. The characteristics of these Writs are:

  1. Although only a Judge of the Exchequer Court has power to issue these Writs, no judicial decision is required of that Judge. This circumstance arises because, under three of the four Statutes, the Judge is given no power to investigate and satisfy him or herself that the Writ should be issued. The three Acts all stipulate that, on request, the Judge “shall” issue the Writ, thus providing no alternative.

    Under the fourth statute, the Customs Act, the word “may” is used and technically, at least, the Judge in an application under that Statute could have a discretion, but this is likely to be only an academic difference. Under all statutes he or she must only be satisfied that the appropriate minister is making the application leg. For the Customs and Excise Acts it would be the Attorney General of Canada; for the Narcotics Control Act and the Food and Drugs Act it would be the Minister of Health, and that the person to whom the writ is granted is a Peace Officer or an Excise or Customs official.

  2. Once issued, the Writ of Assistance is virtually good forever. It is true that each Writ must be addressed to a named person (who is usually an R.C.M.P. Officer) but until he or she dies, or ceases to be an officer, the Writ remains viable and may lawfully be used. In other words, the Writ may be used repeatedly without renewal.
  3. Writs under the Narcotics Control Act and the Food and Drugs Act, are limited in their use to searches for narcotics and controlled drugs respectively. Writs under the Excise Act authorize searching end seizing anything liable to forfeiture under the Act—usually liquor, beer, tobacco and apparatus used to manufacture or transport the same. Writs under the Customs Act authorize searching and seizing of any goods that are liable to forfeiture under the Act, i.e. anything reasonably suspected of having been smuggled into Canada. It should be noted that Writs of Assistance do not operate outside the specific areas authorized by the four Statutes.
  4. These Writs may be executed in any part of Canada and in some cases may be transferred from the officer originally named to some other officer in the same Department without even a change of name.
  5. The officer executing the Writ has authority to take whatever assistance he or she thinks they may need, and is empowered to use whatever physical force he or she deems necessary. There seems to be no limit to the amount of force that may be used in effecting searches. Thus cartoons showing cars at the border being taken apart piece by piece reflect a grim reality; and accounts of drug raids in which furniture and portions of houses are wrecked are not necessarily exaggerations. There is no statutory requirement that property destroyed or damaged in the course of a search must be repaired or restored.
  6. In the case of Writs that authorize searches for narcotics or controlled drugs, there is a limitless power to search any person found in the premises being searched and even the requirements of the Customs Act that a female is to be searched only by a female does not seem to be in the other statutes.
  7. There are no restrictions as to date, time or place of search.

It is apparent that, from the civil libertarian point of view, two main objections to this legislation must be stated. First is the hypocrisy of requiring a Judge of the Exchequer Court to issue the Writ when he or she is not endowed with any power of judicial decision (i.e. when he or she has no real discretion whether to issue the Writ.) If such Writs are required it would at least be more honest to allow the Commissioner of the R.C.M.P. or the Chief Collector of Customs to issue them as a routine matter, rather than to demean a Court by assigning it a mere clerical task. No doubt the existing state of affairs has the purpose of giving the appearance of a judicial function although in fact none exists. This false appearance has no justification whatever.

Second, the need for such Writs must be seriously questioned. We do not have information concerning the precise social or economic situations that gave rise to the legislation in the first place. The Customs Act dates from before Confederation and has always included the power to issue Writs of Assistance. The Excise Act (then called the Inland Revenue Act) has contained the same power since 1883. No doubt the Writs were seen in those days as a technique for protecting important Government revenue.

The forebear of the present Narcotics Control Act was the Opium and Narcotic Drug Act and in 1929, for the first time, the power to issue Writs of Assistance was added to it. Marijuana, incidentally, has always been unlawful under this statute. This circumstance could exemplify the extension of a bad precedent from one field into a completely different one.

Finally, in September 1961, the Food and Drugs Act was given a new part, dealing with “controlled drugs” and in it, for the first time, the power to issue Writs of Assistance was added. No doubt this last piece of legislation is related to the panic about drugs in the late 1950s and early 1960s, but it is clear that if the existence of this power has been as ineffectual in the field of customs and excise as in that of drugs, the legislation could be repealed with no adverse effect on law enforcement. Moreover, the Customs and Excise are no longer such important sources of revenue as they once were—frontier circumstances of a hundred years ago no longer exist.

Income tax legislation now brings in much larger revenue and has its own special enforcement procedures, including wide powers of search and seizure, which also exist (quite apart from Writs of Assistance) in the other four pieces of legislation.

All in all, there no longer seems to be any real justification for the legislation and its repeal should therefore be sought. In this way an anachronism would be removed from the law and the normal protection of the judicial process restored in these important areas.