PRIVY COUNCIL

Canadian Pacific Wine Company Limited
                       Vs.

               Tuley and others

(Viscount Birkenhead, CJ, Viscount Haldane, Lord Buckmaster, Lord Carson and Sir
                                          Louis Davies.)
                                             21.7.1921

                          JUDGMENT

Viscount Birkenhead, CJ.

1. This is an appeal from a judgment of the Court of Appeal of British Columbia,
which affirmed the judgment of the Trial Judge, Murphy, J. delivered in the Supreme
Court. The action was brought for the return of moveable property of the appellants,
including books and papers and a stock of liquor, alleged to have been illegally seized,
and for damages for such seizure and for unlawful entry in the appellants' warehouse.
The respondents, excepting the respondent South, who is a deputy police Magistrate,
are police officers of the City of Vancouver.

2. The first question to be decided relates to the constitutional validity of the statutes
under which the respondents purported to act. These are the British Columbia
Prohibition Act, as consolidated in 1920, and the Summary Convictions Act, 1915.
The former statute provides by Section 10 that, subject to exceptions not here material,

       "no person shall, within the Province, by himself, his clerk, servant, or agent,
       expose or keep for sale, or directly or indirectly on any presence or upon any
       devise sell or barter, or offer to sell or barter, or in consideration of the
       purchase, a transfer of any property or thing, or for any other consideration, or
       at the time of the transfer of any property or thing, give to any other person, any
       liquor."
3. By Section 11 the keeping, having, or giving of liquor in any place other than
private dwelling-house where a person resides is prohibited.

4. Section 19 provides that nothing in the Act shall prevent the keeping of liquor for
export, provided that the warehouse in which it is kept complies with certain
requirements, in default of the observant of which it is not to be deemed to be a
warehouse within the Act, or from selling from such warehouse liquor to persons in
other provinces, or in foreign countries, or to a vendor under the act. By an
amendment 'introduced into the Act in 1919, by way of an addition to Section 19, it is
provided that any person who has liquor in a warehouse shall furnish the
Commissioners under the Act with certain information as to the warehouse and the
liquor in it, and as to all removals from it of such liquor, with its destination, and the
Commissioner or his agent authorized in writing may enter and make such searches in
the warehouse as he thinks necessary for the purpose of obtaining or confirming
information. Penalties imposed under the Act are by Section 30 to be recoverable
under the provisions of the Summary Convictions Act. By Section 48 the
Commissioner, Superintendent or any police officer, is for the purpose of detecting the
violation of any of the provisions of the Act to have power, where it is believed that
liquor is kept contrary to its provisions, to enter and search, and break open lock fast
places, and anyone who obstructs such entry is to be guilty of an offence against the
provisions of the Act.

5. By Section 49 if the Commissioner, Superintendent, or any police officer believes
that liquor intended for sale in violation of the Act is concealed in the vehicles or on
the land of any person, he, or they are to have power without warrant to search for and
seize such liquor and the vessels in which it is kept; and by Section 50 the justice who
convicts for the keeping of liquor contrary to the provisions of the Act, may declare
the liquor and the vessels to be forfeited. By Section 28 every person contravening or
committing any breach of the provisions of Section 10 is made liable to fine or
imprisonment, and, further, for every offence against the Act for which a penalty has
not been specially provided, penalties of fine or imprisonment are enacted.

6. The above summary represents sufficiently, for the purposes of the present appeal,
the main provisions of the statute. Their Lordships are of opinion that it was within the
power of the Legislature of British Columbia to enact it. The case is in their opinion,
governed by the principles enumerated when their decision was given in favor of the
Province of Manitoba on the interpretation of Sections 91 and 92 of the British North
America Act, 1867, in Attorney-General of Manitoba v. Manitoba License Holders'
Association 1.The second statute under which the proceedings of the police are
justified in the present proceedings, and which in turn is impeached, is the Summary
Convictions Act of the province. This statute provides (Section 2) that in every case in
which a penalty or imprisonment is prescribed by a statute of the Province, and it is
not provided in such statute in what manner or by what procedure such penalty or
punishment may be recovered or enforced, such penalty or imprisonment shall be
enforced on summary conviction before a justice (including a police magistrate) as if
the same was expressly so declared in such statute. By Section 4, the Act is to apply to
cases in which any person commits or is suspected of having committed, any offence
or act over which the Legislature has legislative authority, and for which such person
is liable on summary conviction to imprisonment, fine, or other punishment; and to
cases in which a complaint is made to any justice in relation to any matter over which
the Legislature has such authority, and with respect to which the justice has authority
by law to make any order for the payment of money or otherwise. The Act further
contains provisions for procedure, and for enabling under Section 11, the justice to
detain anything seized and brought before him for the purposes of evidence.

7. It was contended at the Bar that this statute was ultra vires of the Provincial
Legislature, on the ground that it was an attempt to enact provincial legislation for
"criminal law," including procedure in criminal matters, within the words of Section
91, head 27, of the British North America Act. But that section only declares that it is
to be lawful for the Sovereign, with the advice of the Dominion Parliament, to make
laws for the peace, order and good Government of Canada generally, in relation to all
matters not coming within the classes of subjects, by the Act exclusively assigned to
the Legislatures of, the provinces, and the enumeration of matters which follows in
Section 91, to which the exclusive authority of the Dominion Parliament extends is
only a declaration that certain subjects fall under this description. When the language
of Section 92, which defines, the matters to which the exclusive legislative authority
of the province extends, is scrutinized, this definition is found to include the
administration of justice in the provinces embracing the constitution, maintenance and
organization of provincial Courts, both civil and criminal, and procedure in civil
matters in these Courts. Head 15 of Section 92, expressly adds the imposition of
punishment by fine, penalty or imprisonment, for enforcing any law of a province,
made in relation to any of the classes of subject enumerated in the Section; and head
16 gives exclusive legislative power to the provincial Legislatures in all matters of a
merely local character. Reading Sections 91 and 92 together, their Lordships entertain
no doubt that the Summary Convictions Act was within the competence of the
Legislature of British Columbia. It relates only to punishment for offences against the
provisions of the statutes of the province, and is to be read as if the provisions to this
end were expressly declared in some such statute. No other conclusion would appear
to be in harmony with the principle of construction laid down by the Judicial
Committee in Attorney-General for Ontario v. Attorney-General for the Dominion, 2
8. The two preliminary constitutional points having thus been disposed of, their
Lordships turn to the facts as proved in the proceedings. The appellants are dealers in
liquor, as importers into the Province and exporters from it, in the City of Vancouver.
They possess a warehouse in that city, where, on 15th July, 1920, they had a large
stock of liquor. On that date the respondents, Tuley, Sutherland Copeland's and
Thompson, who were police officers, entered the warehouse. Previously some 60
dollars has been marked and handed to a police officer, who had gone to the
warehouse to ascertain whether liquor for that amount would be unlawfully sold to
him by the appellants. It was so sold and the money in payments therefore was
accepted. When the respondent above mentioned entered, they seized the whole stock
of liquor there, with the money marked referred to above, and subsequently removed
the liquor, books and papers of the appellants from the warehouse. On 19th July one of
the respondents, laid information against the appellants, under the Summary
Convictions Act for unlawfully keeping liquor for sale. On this information the deputy
police magistrate before whom the proceedings came, convicted the appellants,
finding that all the liquor in the warehouse was unlawfully kept there. He ordered it to
be confiscated and fined the appellants. On 9th August, 1920, the appellants issued
the writ in this action, claiming replevin and other relief. In due course the action
came for trial before Murphy, J. The learned Judge held that the appellants were
entitled to recover the 60 dollars first paid by the police and afterwards seized by
them. Whether this decision was right or not, there is no cross-appeal with regard to it.
But he further held that the confiscation order of the police magistrate was valid. A
second point was made before him to the effect that even if the entry and seizure were
lawful, the police became trespassers a into, because they seized and carried away the
money and books without the authority of a search warrant. But the learned Judge held
that, even if there were no authority in the terms of the Prohibition Act for these
seizures, this fact did not make the police trespassers ab initio. In so far as the seizure
of the liquor was concerned, their Lordships agree with Murphy, J. This seizure must
be taken to be within the statute on the facts proved. The Six Carpenters Case (1609) 8
Rep. 146-a left the further point which arises from the unauthorized seizure of other
properties unsettled. But it was subsequently disposed of by the judgment of the Court
of Exchequer in Harvey v. Pocock 3 There a landlord had taken in distrait, along with
chattels that were distrainable, others that were not. It was decided that the disdainer
was a trespasser ab into only as to the goods which were not properly distrainable.
Lord A binger C. B., delivering the judgment of the Court, which included Gurney, B.
and Rolfe, B., decided that the opinion of Lord Holt in Dod v. Monger 4 ought to be
followed, and that where there is an abuse of part only of the distress, the distrainer is
not a trespasser a initio as to what was rightly distrained.

9. Their Lordships find themselves in agreement with this statement of the law. The
learned Judge held further that the books and papers seized were taken under a search
warrant properly issued under the Summary Convictions Act. In any event these books
and papers appear to have formed the subject of a separate proceeding, and to have
been returned to the appellants. Their Lordships do not think that any substantial
question arises with regard to them. The Court of Appeal affirmed the judgment of the
Trial Judge without adding to the reasons he gave for his judgment. For the reasons
indicated, the Board will humbly advise His Majesty that this appeal should be
dismissed. There will be no order as to costs.

Appeal dismissed.

Cases Referred.

   1. (1920) 2 A.C. 73.
   2. (1898) A. C. 348
   3. 11 M. and W. 740.
   4. (1705) 6 Mod, 215