19741
COMMENTS – COMMENTAIRES
Re Laporte and The Queen
In Re Laporte and The Queen I Mr Justice Hugessen was faced
with a situation which was without precedent in Canadian Crimi-
nal Law. He was called upon to decide whether it was within a
lower court’s jurisdiction to issue a search warrant requiring a
police suspect to involuntarily undergo surgery to remove a bullet,
needed for evidentiary purposes, which was lodged inside his body.
The petitioner, who sought a writ of certiorari to set aside a
search warrant issued by Lagani~re,J., had been arrested on July
26, 1971 in connection with a matter which apparently was un-
related to the present case. However, the police had some reason
to suspect that the petitioner had been involved in a holdup which
had occurred eighteen months earlier. Scars on Laporte’s neck and
shoulder resembled bullet wounds and subsequent x-rays revealed
the presence of a foreign metallic body embedded in Laporte’s
shoulder which corresponded in size and shape to a .38 calibre
slug. It was obvious that it could not be removed by minor surgery
but only under conditions involving the administration of a general
anaesthetic. This would have involved a certain amount of risk
to the petitioner.
Lagani~re,J. had authorized the search warrant under the pro-
visions of section 443(1) of the Canadian Criminal Code, which
provides that a judge may issue a warrant to search “a building,
receptacle or place” if he is satisfied that there is reasonable
ground to believe that “anything that there is reasonable ground
to believe will afford evidence with respect to a commission of an
offence against this Act” is therein located. The learned justice
interpreted the word “receptacle” to include a human body. Huges-
sen,J. rejected this interpretation of the word and reversed the
decision of Laganiire,J., finding that he had no jurisdiction to issue
the search warrant.
Before discussing the principal question of jurisdiction, Huges-
sen,J. rejected three subsidiary arguments advanced by the peti-
tioner. The first was that the warrant should be set aside because
it contravened section 2(d) of the Canadian Bill of Rights,3 which
provides a privilege against self-incrimination. However, Hugessen,
1 (1972), 29 D.L.R. (3d) 651 (Que. Q.B.).
2R.S.C. 1970, c.C-34.
McGILL LAW JOURNAL
[Vol. 20
J. rejected this argument because it was held in R. v. Wray 4 that
this protection covers only statements made by the accused. It
does not extend to evidence obtained from an accused by extrac-
tion, as, for example, a blood sample.5 The petitioner also sug-
gested that the search warrant was in breach of section 2(b) of
the Canadian Bill of Rights, which prohibits the imposition of
cruel and unusual treatment or punishment. But since thousands
of surgical operations are performed each day, and are considered
neither cruel nor unusual, this contention did not succeed. Finally,
the petitioner urged the revocation of the search warrant on the
grounds it did not name the doctors who were to carry out the
operation as section 443 seems to require. This was also rejected
by the court since the police officers were named and the doctor
would merely act as their agent.
Unlike the superficial treatment accorded the subsidiary ques.
tions, the main issue of whether there exists jurisdiction at com-
mon law or under the Criminal Code to issue such a search warrant
was discussed at length. The paucity of Canadian legal opinion
on the subject led to an examination of two American cases. In
the unreported James L. Crowder case, Curran,C.J. of the District
Court of the District of Columbia authorized the issuance of a
search warrant for the surgical removal of what was thought to
be a bullet “lying superficially beneath the skin”. However, a search
warrant for a similar bullet in Crowder’s left thigh was not granted
“because this procedure might cause the reduction of use or func-
tion of his left leg”. The decision was based on Schmerber v. Cali-
fornia, in which the Supreme Court of the United States ruled that
the results of a blood test taken without the consent of the appel-
lant were admissible as evidence and did not violate the “unrea-
sonable search and seizure” provision of the American Constitu-
tion.’ The Court placed emphasis on the nature of the operation
itself. Since the taking of a blood sample was considered to be
a simple task involving very little risk, -it was not considered to
violate the individual’s rights. The distinction in the Crowder case
between a deeply and a superficially embedded bullet was ob-
8R.S.C. 1970, App. III.
4 [1971] S.C.R. 272; [1970] 4 C.C.C. 1.
GA.-G. Que. v. Begin, [1955] S.C.R. 593; 112 C.C.C. 209.
0 384 U.S. 757 (1966). See also Denton v. U.S., 310 F.2d. 129 (1962, Ariz. C.A.);
Lane v. U.S., 309 U.S. 681 (1939); and U.S. v. Michel, 158 F.Supp. 34 (1957, Tex.
D.C.). But in other American cases, similar searches have been held contrary
to the Bill of Rights: Rochin v. California, 342 U.S. 165 (1952); U.S. v. Willis,
85 F.Supp. 745 (1949, Calif. D.C.).
1974]
COMMENTS -. COMMENTAIRES
viously drawn from the distinction espoused by the Supreme Court
in Schmerber v. California concerning the degree of seriousness
of the procedure. Under this test, it would seem fairly clear that
the search warrant in the case under discussion should be quashed,
since the operation would involve some degree of risk to Laporte.
Instead of embracing the American approach and prohibiting
the surgery because of its serious nature, Hugessen,J. undertook
an historical analysis of the right to search an individual. He com-
menced by examining two century-old cases which form the foun-
dations of the modern rule.7 They establish that a policeman has
a right at law to search a prisoner at the time of arrest. Nowhere
is there mention of a right to conduct internal searches, although
in R. v. Brezack the Ontario Court of Appeal held a search of the
accused’s month for narcotic capsules permissible.8 The search
was justifiable as an incident of the arrest since it took place
at that time. As Hugessen,J. states:
The reasons for such right [are] … to make the arrest effective, to
ensure that evidence does not disappear and to prevent the commission
of a further offence 9
In Re Laporte and The Queen the slugs had probably been in
the petitioner’s body for over a year. This fact alone would clearly
remove any common law justification of an operation because
of the passage of time.
If no right to search existed at law, could such a right be found
in the provisions of a statute? Express statements of the right to
search a person appear to be limited to section 103(1) of the
Criminal Code, section 10(1)(b) of the Narcotic Control Act,10 and
section 148 of the Customs Act.1 However, Laganibrej. held that
the right might also be based on section 443 of the Criminal Code.
As mentioned above, he found that a person may be considered
a “receptacle” under that section. This use of the word is founded
on its definition in the London County Council (General Powers)
Act,”2 which is the source of the definition offered in Words and
Phrases. But the Act does not state that a human being may be
a receptacle; rather, it provides that receptacle includes a “con-
tainer” for any, living thing. That does not mean that one’s body
7Leigh v. Cole (1853), 6 Cox C.C. 329; Bessel v. Wilson (1853), 1 El. & BI.
489; 118 E.R. 518.
8 [1950] 2 D.L.R. 265;- 96 C.C.C. 97.
9 (1972), 29 D.L.R. (3d) 651, 658.
10 R.S.C. 1970, c.N-1.
11 R.S.C. 1970, c.C-40.
McGILL LAW JOURNAL
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is a receptacle, unless one adopts the crudest form of philosophic
dualism. In any event, Hugessen,J. thought it:
S.. totally unjustified to make use of a definition of this sort, contained in
a foreign statute, and having a specific purpose, to and in the construction
of plain words used in the Criminal Code. In my view whatever else a
receptacle may be, it cannot in any normal construction of language be
held to include the interior of a living human body.13
Lagani~re,J. did not discuss the definition of the word “place”
since he had already defined “receptacle” in such a manner as to
justify his decision. Hugessen,J. does not attempt an exhaustive
study of the word, because it fairly clearly has a geographical and
not an anatomical connotation. As well, among various Acts there
is a certain consistency in limiting the use of the word to geo-
graphical matters. 14 It would therefore seem that section 443 of
the Criminal Code was not intended to permit a search of an in-
dividual’s body.
It is quite obvious that the meanings of “receptacle” and “place”
would be extended if either included a person’s body. It is also
clear that this was hardly the case to prompt such an extension.
As Hugessen,J. concluded, the search warrant was “a grotesque
perversion of the machinery of justice”.” But it is less than clear
whether such a search warrant may be so described in all circum-
stances. Is it “grotesque” to require a sample of the accused’s
blood or a bullet lying superficially beneath his skin to be pro-
duced? If the operation does not involve any risk to the accused
(other than that of being found guilty of the offence charged),
a failure to require the evidence may result in a greater perver-
sion of justice.
Hugessen,J. would seem to have been thinking of this argument
when he stated that “if the police are today to be authorized to
probe into a man’s shoulder for evidence against him, what is
to prevent them tomorrow from opening his brain or other vital
organs for the same purpose”.’ 6 As a criticism of the American
decisions noted above, this is somewhat unsatisfying. While it is
no doubt difficult at times to determine whether an operation
is fraught with risk, one may still point to paradigms of risky and
“safe” operations. But if this variant of the domino theory does
12 10-11 Geo. VI, c.46, s.15(1).
13 (1972), 29 D.L.R. (3d) 651, 660.
14An Act for the Suppression of Betting Houses, 16-17 Vict., c.119; Scrap
Metal Dealers Act, 12-13 Eliz. II, c.69, s.9.
15 (1972), 29 D.L.R. (3d) 651, 662.
10 Ibid., 661.
1974]
COMMENTS – COMMENTAIRES
not destroy the rationale of the Crowder case, it is a not inap-
propriate comment on the present law in Canada.. If one’s body
is a receptacle for one purpose, it is so in all cases. Without the
safeguards of the American constitution, one might be forced
under section 443 to undergo a major operation. The Crowder
case, as Hugessen,J. notes, “is not the law in Canada”. 1’7 If a
search is permitted in one case, it may therefore be allowed in
all cases. One may want to reject this interpretation of section
443 because it flies in the face of the ordinary meanings of “recep-
tacle” and “place”. But it is also objectionable as “an unwarranted
invasion upon the basic inviolability of the human person”.’8 Given
the narrow terms of the section of the Criminal Code he was
interpreting, Hugessen,J. gave the only decision “compatible with
individual human dignity”.19
Howard Shuster *
17 Ibid., 662.
18 Ibid.
19 Ibid.
* B.C.L. (McGill).
