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• Terminology
• Possible Rules For Groups 1 And 2
• Groups 3 And 4
• Conclusion

Part II Administrative powers to enter, search and seize

Terminology

5  In the title to this part we use the far from precise term "administrative powers" to distinguish the licences to enter, search and seize conferred on various other government agencies from comparable entitlements available to the police, whose powers we deal with in Part III. There is some overlap between these two categories, but because the distinction we propose has no more profound purpose than to make a large task manageable, this does not seem to us to matter. The licences discussed in this part all owe their existence to legislation or delegated legislation, and are listed in appendix A.

6  In an effort to impose some sort of order and system on what is a motley collection of measures, we have divided appendix A into four groups.

• Group 1 Powers of routine administrative inspection.
• Group 2 Powers where an offence is suspected.
• Group 3 Powers that should be abolished.
• Group 4 Powers that should be preserved but which the rules we propose for Groups 1 and 2 do not fit.

7  Most of the powers listed in appendix A are to be found in groups one and two. In North America, where there is a judicial power to strike down legislation, a distinction has been drawn between powers exercised where an individual is suspected of criminality (Group 2 powers in our categorisation) on the one hand and routine administrative inspections on the other.³ Situations in the other category (Group 1 powers in our categorisation) have been described by Justice La Forest in the Supreme Court of Canada in these terms:

In a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state. The restaurateur's compliance with public health regulations, the employer's compliance with employment standards and safety legislation, and the developer's or homeowner's compliance with building codes or zoning regulations, can only be tested by inspection, and perhaps unannounced inspection, of their premises. Similarly, compliance with minimum wage, employment equity and human rights legislation can often only be assessed by inspection of the employer's files and records.⁴
The underlying purpose of inspection is to ensure that a regulatory statute is being complied with. It is often accompanied by an information aspect designed to promote the interests of those on whose behalf the statute was enacted. The exercise of powers of inspection does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian. While regulatory statutes incidentally provide for offences, they are enacted primarily to encourage compliance. It may be that in the course of inspections those responsible for enforcing a statute will uncover facts that point to a violation, but this possibility does not alter the underlying purpose behind the exercise of the powers of inspection. The same is true when the enforcement is prompted by a complaint.⁵

We think this description is adequate as a working rule to distinguish between groups one and two.

Possible Rules for Groups 1 and 2

8  We believe that precisely defined limitations should be placed on the manner of the exercise of the powers listed in groups one and two. Our tentative (but reasonably strongly held) view is that there should be a codification of the rules governing the exercise of these powers. Our reasons for this view are:

• It is plain on even the most cursory examination of the measures listed that there is a complete lack of uniformity both in the prescribed limitations in the manner of exercise and, even where there is uniformity in purport, in the language that the draftsman has employed. It seems to us that there are obvious advantages in the quest for certainty and in saving time and legal expenses to be gained by prescribing a uniform formula. Any problems in the interpretation of the formula when solved would settle the question in all cases where the formula applied.
• The existence of the code would mean that those required to approve the details of legislation (including parliamentarians and, in particular, select committee members) would be more readily alerted to departures from the norm.

9  A rigid one-size-fits-all code, unable ever to be departed from, would of course be foolishly procrustean. When the formula is not completely appropriate, the legislation can be expressed in the terms that the formula will apply subject to certain stated modifications. This form of expression will, without imposing excessive rigidity, preserve the objects of drawing attention to departures from the norm and of securing the benefits of uniformity to the extent that this is possible.

10  The question of the principles that should regulate the grant of statutory powers of entry was considered in 1983 by the Public and Administrative Law Reform Committee in its report Statutory Powers of Entry. There is a 1988 report Search and Search Warrants by an ad hoc committee chaired by Justice Robertson. In what follows, we have lent heavily on these two reports.⁶

11  The rules governing entry onto land by way of routine administrative inspection that we propose (Group 1 of appendix A) are as follows:

1. The entry should be during the hours of daylight.
2. Force to effect an entry should be used only after either a warning to the occupant, if he is present, of an intention to use force if he continues to obstruct entry or with the authority of a warrant from a judicial officer.
3. The officer effecting the entry must produce a means of identification and notify the source of the power relied on.
4. If the occupant is not present during some part of the period between when the officer enters and departs, the officer must make every effort to give actual notice to the occupant (including, in every case, leaving a conspicuous written notice at the scene) of the fact of the entry having occurred.

12  The rules we propose for the situation where an individual is suspected of criminality (Group 2 of appendix A) differ from those applying to Group 1 in appendix A in the following respects:

1. In every case, entry into a dwelling must be authorised by warrant.
2. Rule (a) of the Group 1 rules restricting entry to the hours of daylight may be departed from where authorised by warrant.
3. The obligation in Rule (d) of the Group 1 rules to give notice following entry into unoccupied premises may be departed from where this is authorised by a judicial officer who is satisfied that a notification of the entry would prejudice subsequent enforcement activity.

13  As an example of what we propose, we suggest consideration of the Films, Videos, and Publications Classification Act 1993 section 111 which is in the following terms:

This would clearly be a Group 2 power. In relation to entry, these powers exceed the proposed Group 2 rules in the following respects:

• the power in section 111(2)(a) to enter "at any time by day or night" without the need for occasion-specific authorisation; and
• the unqualified power to use force set out in section 111(2)(c).

(The obligation to give notice where the occupant is absent is in this case set out in section 113, which we have not set out.) Our present view in relation to this particular measure is to recommend that the Group 2 rules should prevail, with inconsistent provisions of the existing statute being read subject to them.

14  It is not of course constitutionally possible for the legislature to bind its successors in the way they are to express themselves.⁷ Our recommendation, if adopted, can apply to existing legislation, and we contemplate in our final report recommending an amendment to the provisions of the Cabinet Manual relating to bidding for proposed Bills to try to ensure that the formulaic approach we recommend continues to be employed.

Groups 3 and 4

15  Group 3 comprises provisions the existence of which does not seem to us to be justified and that we think should be repealed. In some cases, the relevant agency has stoutly supported the need for the power, even though the power may never have been used, and we have given an indication in those cases of the grounds claimed by the agency as justifying the existence of the power.

16  Preservation is recommended in relation to Group 4. Each of the provisions or sets of provisions in this group seems to us to be sui generis, in a class of its own and entirely reasonable.

Conclusion

17  In the interests of keeping the project within bounds we have listed all the statutes and regulations that seem to us relevant but have discussed their content only where (as in appendix A Group 3) we have recommended repeal or revocation or (as in appendix A Group 4) to explain why a measure should be left untouched. In appendix A Group 1 we have indicated the few cases where (as discussed in paragraph 9) it seems to us that our proposed code should be modified in a stated respect. Because of the width of this project the Commission finds itself in areas where it is impractical for its knowledge to be any more than superficial so that its proposals are more than usually tentative. To make our proposals quite clear, we recommend legislation:

• making the measures listed in Group 1 subject to the rules set out in paragraph 11 (except as indicated in appendix A);
• making the measures listed in Group 2 (appendix A) subject to the rules set out in paragraph 12;
• repealing or revoking the measures listed in Group 3 (see appendix A).