E R CROFT Vs. SYLVESTER DUNPHY

JUDGEMENT

(1.) On 10 June 1929 the schooner "Dorothy M. Smart"sailed for "the high seas"from the French island of St. Pierre with a cargo on board of rum and other liquors, which are dutiable under Canadian law. The vessel was registered in Nova Scotia and with her cargo was the property of the respondent, who is resident in Nova Scotia. On 13 June 1929 the schooner, when at a distance of 11? miles from the coast of Nova Scotia, was boarded by the appellant, an officer in the Customs service of the Canadian Government. The cargo having been found to consist of dutiable goods, the vessel and cargo were seized and taken into port.

(2.) The validity of the seizure, which was effected in pursuance of powers conferred by the Customs Act of Canada, Revised Statutes of Canada 1927, c. 42, as amended by 18 and 19 Geo. 5, c. 16, is challenged in the present proceedings on the broad ground that the Parliament of the Dominion in conferring the powers in question exceeded its legislative competence. The enactments impugned are contained in Ss. 151 and 207 of the statute as amended. S. 151 provides as follows: "(1) If any vessel is hovering in territorial waters of Canada any officer may go on board such vessel and examine her cargo and may also examine the master or person in command upon oath touching the cargo and voyage and bring the vessel into port." (7) For the purposes of this section and S. 207 of this Act 'Territorial waters of Canada' shall mean the waters forming part of the territory of the Dominion of Canada and the waters adjacent to the Dominion within three marine miles thereof in case of any vessel and within 12 marine miles thereof in the case of any vessel registered in Canada." Section 207 enacts as follows: "(1) If upon the examination of any officer of the cargo of any vessel hovering in territorial waters of Canada any dutiable goods or any goods the importation of which into Canada is prohibited are found on board such vessel with her ... cargo shall be seized and forfeited...."

(3.) The question accordingly is whether it was within the power of the Dominion Parliament to pass such legislation purporting to operate to a distance of 12 miles from the coast of Canada. To test this question the respondent as plaintiff below initiated proceedings in the Supreme Court of Nova Scotia against the Customs officer who had seized his vessel and cargo, claiming their return and damages for their detention on the ground of the illegality of the seizure. The trial Judge upheld the validity of the legislation and consequently of the seizure, and his decision was affirmed by five Judges of the Supreme Court of Nova Scotia en banco. On an appeal being taken to the Supreme Court of Canada this judgment was reversed by a majority consisting of Duff, Rinfret and Lamont, JJ., Newcombe and Cannon, JJ., dissenting. The matter now comes before their Lordships on the defendant's appeal.