Addy,
J:—The
applicants
brought
a
motion
before
The
Honourable
Mr
Justice
Dube,
the
purpose
of
which
was
expressed
to
be:
to
fix
a
date
and
a
place
for
the
determination
of
the
question
whether
the
Petitioners
(Applicants)
have
a
solicitor-client
privilege
in
respect
of
documents,
books,
records
nd
other
written
things
seized
on
8
July
1982,
at
the
premises
of
Verchere,
Noel
&
Eddy,
lawyers,
and
kept
under
seal
since
that
time
by
Jacques
Morel,
assistant
sheriff
for
the
district
of
Montreal:
The
appointment
was
granted
but,
although
it
was
the
intention
of
the
applicants
to
file
a
formal
motion
for
the
requested
relief
with
the
usual
affidavits
in
support
for
presentation
at
the
time
and
place
appointed,
this
additional
step
was
overlooked
as
counsel
for
the
parties
had
been
attempting
to
settle
the
various
questions
raised.
Upon
appearing
before
me,
as
most
matters
had
by
that
time
been
settled
and
several
of
the
seized
documents
had,
on
consent,
been
returned
to
the
applicants’
solicitors
and
as
the
sole
issue
to
be
determined
was
a
question
of
law,
there
being
no
dispute
as
to
facts,
it
was
urged
upon
me
by
all
parties
that
I
proceed
to
determine
it
as
if
a
formal
notice
of
motion
had
been
made
in
writing.
In
these
exceptional
circumstances
and
in
order
to
save
time
and
avoid
further
costs,
I
agreed
to
dispense
with
the
formal
notice
of
motion
and
affidavit
and
to
hear
argument
on
the
matter.
The
only
documents
still
subject
to
dispute
were
several
bundles
of
cancelled
cheques
attached
to
monthly
bank
statements
pertaining
to
the
cheques.
They
were
all
drawn
on
the
same
account
in
the
name
of
a
third
party
in
trust.
None
of
the
applicants
were
in
any
way
mentioned
in
any
of
these
documents
and
there
was
no
evidence
in
any
way
connecting
them
with
the
documents.
It
was
common
ground,
however,
that
the
cheques
and
the
accompanying
bank
statements
were
located
in
the
office
of
the
above-
mentioned
solicitors
among
the
documents
pertaining
to
the
affairs
of
the
applicants
and
that
they
were,
for
that
reason,
surrendered
by
the
solicitors
to
Mr
Morel
as
custodian,
pending
the
final
determination
of
the
question
of
solicitor-client
privilege
by
the
Court.
It
was
also
common
ground
that
the
entry
and
search
was
made
pursuant
to
an
authorization
to
that
effect
granted
by
The
Honourable
Mr
Justice
Gratton
of
the
Supperior
Court
of
the
Province
of
Quebec,
under
the
provisions
of
subsection
231(4)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63
as
amended.
A
copy
of
the
said
authorization
to
enter
and
search
was,
upon
consent,
filed
as
an
exhibit
to
these
proceedings.
The
present
application
was
made
for
the
determination
of
the
question
mentioned
in
subsection
232(4)
of
that
Act.
The
relevant
portions
of
the
Income
Tax
Act
read
as
follows:
231.
Investigations.
(1)
Any
person
thereunto
authorized
by
the
Minister,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
may,
at
all
reasonable
times,
enter
into
any
premises
or
place
where
any
business
is
carried
on
or
any
property
is
kept
or
anything
is
done
in
connection
with
any
business
or
any
books
or
records
are
or
should
be
kept,
and
(d)
if,
during
the
course
of
an
audit
or
examination,
it
appears
to
him
that
there
has
been
a
violation
of
this
Act
or
a
regulation,
seize
and
take
away
any
of
the
documents,
books,
records,
papers
or
things
that
may
be
required
as
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation.
231.
(4)
Search.
Where
the
Minister
has
reasonable
and
probable
grounds
to
believe
that
a
violation
of
this
Act
or
a
regulation
has
been
committed
or
is
likely
to
be
committed,
he
may,
with
the
approval
of
a
judge
of
a
supeior
or
county
court,
which
approval
the
judge
is
hereby
empowered
to
give
on
ex
parte
application,
authorize
in
writing
any
officer
of
the
Department
of
National
Revenue,
together
with
such
members
of
the
Royal
Canadian
Mounted
Police
or
other
peace
officers
as
he
call
on
to
assist
him
and
such
other
persons
as
may
be
named
therein,
to
enter
and
search,
if
necessary
by
force,
any
building,
receptacle
or
place
for
documents,
books,
records,
papers
or
things
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation
and
to
seize
and
take
away
any
such
documents,
books,
records,
papers
or
things
and
retain
them
until
they
are
produced
in
any
court
proceedings.
232.
(4)
Application
to
judge.
Where
a
document
has
been
seized
and
placed
in
custody
under
subsection
(3),
the
client
or
the
lawyer
on
behalf
of
the
client,
may
(a)
within
14
days
from
the
day
the
document
was
so
placed
in
custody,
apply,
upon
3
days’
notice
of
motion
to
the
Deputy
Attorney
General
of
Canada,
to
a
judge
for
an
order
(i)
fixing
a
day
(not
later
than
21
days
after
the
date
of
the
order)
and
place
for
the
determination
of
the
question
whether
the
client
has
a
solicitor-client
privilege
in
respect
of
the
document,
and
(ii)
requiring
the
custodian
to
produce
the
document
to
the
judge
at
that
time
and
place;
(b)
serve
a
copy
of
the
order
on
the
Deputy
Attorney
General
of
Canada
and
the
custodian
within
6
days
of
the
day
on
which
it
was
made,
and,
within
the
same
time,
pay
to
the
custodian
the
estimated
expenses
of
transporting
the
document
to
and
from
the
place
of
hearing
and
of
safeguarding
it;
and
(c)
if
he
has
proceeded
as
authorized
by
paragraph
(b),
apply,
at
the
appointed
time
and
place,
for
an
order
determining
the
question.
It
is
of
some
importance
to
note
also
that
section
231,
which,
as
above-
mentioned,
includes
the
power
to
enter
upon
and
search
any
property
or
premises
for
evidence
“for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act”,
also
contains
provisions
relating
to
special
inquiries
pursuant
to
which
a
special
enquirer
of
the
Department
has
the
power
to
enquire
“as
he
may
deem
necessary
with
reference
to
anything
relating
to
the
administration
or
enforcement
of
this
Act”.
It
is
difficult
to
conceive
broader
powers
to
enter
upon
what
may
quite
fairly
be
labelled
an
evidentiary
fishing
expediation.
The
evidence
so
seized
or
gathered
may
be
used
at
such
enquiry.
(Refer
subsections
(7),
(8),
(11),
(12),
(13),
(14)
and
(15)
of
section
231.)
Counsel
for
the
applicants
readily
admitted
that
there
could
be
no
question
of
solicitor-client
privilege
involved
in
the
documents
under
considéra-
tion,
since
they
consisted
solely
of
cheques
and
bank
statements,
He,
however,
argued
that
the
Court
should
order
that
they
be
returned
to
the
applicants
by
the
custodian
on
two
grounds:
1.
That
the
evidence
so
seized
was
irrelevant.
2.
That
since
the
documents
were
not
mentioned
in
the
authorization
to
seize
and
search
and
since
they
do
not
in
any
way
purport
to
relate
to
any
of
the
applicants,
who
were
the
only
persons
mentioned
in
the
authorization
as
persons
whose
affairs
are
subject
to
investigation,
the
seizure
was
on
its
face
excessive
and,
therefore,
unreasonable
and
unlawful.
He
thus
seeks
to
have
the
seizure
nullified
as
contrary
to
the
provisions
of
section
8
of
the
Canadian
Bill
of
Rights
which
guarantees
protection
against
unreasonable
search
and
seizure.
He
also,
for
that
same
reason,
invoques
the
provisions
of
subsection
24(2)
of
the
Constitution
Act,
1981
which
requires
that
the
evidence
be
excluded
and
rejected
where
its
admission
is
liable
to
bring
the
administration
of
justice
into
disrepute.
Dealing
with
the
first
point
raised,
that
is,
the
question
of
relevancy,
the
applicants
rely
on
two
fairly
recent
decisions
of
this
Court,
namely,
In
the
Matter
of
Hoyle
Industries
Ltd
and
Hoyle
Twines
Ltd,
[1980]
CTC
501;
80
DTC
6363
and
/n
re
Romeo’s
Place
Victoria
Ltd
et
al,
[1981]
CTC
380;
81
DTC
5295.
As
in
the
case
at
Bar,
both
these
decisions
resulted
from
applications
made
pursuant
to
subsection
232(4)
of
the
Income
Tax
Act
and
concerned
Claims
for
solicitor-client
privilege
over
documents
of
the
applicants
seized
from
the
possession
of
their
solicitors.
In
both
cases,
certain
documents,
which
admittedly
would
not
be
subject
to
solicitor-client
privilege,
were
ordered
to
be
returned
to
the
lawyers
solely
on
the
grounds
that
they
were
completely
irrelevant
as
evidence
concerning
the
financial
affairs
of
the
applicants.
Reluctantly,
I
find
myself
unable
to
follow
those
decisions
for
the
following
reasons:
the
purpose
of
section
232,
in
my
view,
has
been
enacted
exclusively
and
solely
to
allow
the
question
of
solicitor-client
privilege
to
be
determined
by
a
special
summary
procedure
which
icludes
the
creation
of
a
custodian
without
court
order.
In
the
first
place,
it
deals
only
with
documents
that
are
in
the
possession
of
or
under
the
control
of
a
lawyer
as
therein
defined.
Thus,
a
document
that
might
be
found
in
the
possession
of
an
accountant
or
other
party
or
in
the
possession
of
the
taxpayer
is
not
covered
by
the
section.
The
wording
of
subsection
(3)
which
details
the
procedure
to
be
followed
at
the
time
of
attempted
seizure,
deals
only
with
the
case
where
the
document
is
in
the
possession
of
a
lawyer,
where
the
latter
claims
that
it
relates
to
a
named
Client
and
also
claims
that
that
particular
person
enjoys
a
solicitor-client
privilege
with
regard
to
the
document.
Subsection
(4)
lays
down
the
procedure
for
fixing
a
time
and
place
“for
the
determination
of
the
question
whether
the
client
has
a
solicitor-client
privilege
in
respect
of
the
document”.
Subsection
(5)
provides
that
the
hearing
will
be
in
camera
and
that
the
judge
shall
“determine
the
question”
and
“decide
the
matter
summarily”.
This
must
obviously
refer
to
the
matter
or
question
covered
by
subsection
(4).
Subsection
(10),
which
gives
the
judge
powers
to
make
other
directions
concerning
the
matter,
specifically
restricts
the
power
to
give
further
direction
to
one
which
“is
most
likely
to
carry
out
the
object
of
this
section
of
allowing
solicitor-client
privilege
for
proper
purposes”.
In
the
several
other
subsections,
the
issue
of
solicitor-client
is
mentioned
but
at
no
place
whatsoever
in
those
provisions
is
any
other
issue
either
mentioned
directly
or
alluded
to
in
any
way.
I
must
conclude
that
the
special
procedures
provided
for
in
section
232,
including
the
obligation
of
the
the
officer
seizing
the
document
to
refrain
from
looking
at
it,
to
seal
it
in
a
package
and
to
place
it
in
the
hands
of
a
sheriff
of
the
county
or
the
district
concerned
as
a
custodian,
as
well
as
the
powers
granted
to
the
judge
are
all
enacted
solely
and
exclusively
for
the
purpose
of
dealing
with
the
issue
of
possible
solicitor-client
privilege
and
for
no
other
purpose.
The
judge
has
not
on
an
application
of
this
kind,
the
jurisdiction
to
deal
with
an
issue
of
relevancy
of
the
evidence
or
any
other
substantive
issue
whatsoever,
for
that
matter.
secondly,
even
if
jurisdiction
did
exist
to
determine
a
question
of
relevancy,
it
could
never
be
determined
at
this
stage
as
there
is
no
issue
in
dispute
before
the
judge
in
the
light
of
which
any
such
question
must
necessarily
be
decided.
Section
231
which
authorizes
the
entry
and
seizure
provides
that
the
entry
and
seizure
may
be
made
“for
any
purposes
related
to
the
administration
or
enforcement
of
this
Act”.
(Refer
subsection
(1)
quoted
above.)
Subsection
1(d)
(also
quoted
above)
provides
that
the
document
may
be
used
as
evidence
as
to
the
violation
of
any
provison
of
the
Act
or
a
regulation
and
subsection
(4)
gives
the
right
to
enter
and
seize
the
evidence
in
the
event
of
a
belief
in
the
possible
future
violation
of
the
act
or
regulations.
When
one
considers
the
innumerable
possible
violations
and
resulting
issues
and
side
issues,
both
present
and
future
which
might
arise,
and
when
one
considers
that
they
are
in
no
manner
fixed
or
determined
at
present,
it
is,
in
my
view,
absolutely
impossible
to
make
any
proper
judicial
ruling
at
this
stage
on
whether
a
particular
document
is
or
will
eventually
prove
to
be
relevant.
For
the
above
reasons,
I
decline
to
consider
the
question
of
whether
or
not
the
cheques
or
bank
statements
in
issue
are
relevant.
I
will
now
consider
the
second
argument
of
the
applicants
to
the
effect
that
the
seizure
of
the
documents
constituted
an
unreasonable
and
unauthorized
seizure
and
thus
constituted
a
fundamental
violation
of
their
rights.
In
the
first
place,
for
the
reasons
previously
mentioned
regarding
the
question
of
whether
the
documents
would
be
relevant,
I
find
that
I
have
not
the
jurisdiction
in
an
application
under
section
232
to
even
consider
the
question
of
excessive
seizure
as
section
232
authorizes
me
to
deal
only
with
the
question
of
solicitor-client
privilege.
Remedies
exist
for
those
seeking
a
redress
from
searches
and
seizures
that
are
excessive
and
unreasonable
for
many
reasons
other
than
the
fact
that
they
might
constitute
an
evasion
of
a
solicitor-client
privilege,
but
such
redress
can
neither
be
sought
nor
enforced
under
the
authority
of
section
232
of
the
Income
Tax
Act.
Finally,
since
the
basis
of
the
claim
regarding
excessive
seizure
or
unauthorized
seizure
is
that
the
documents
do
not
pertain
to
the
affairs
of
the
applicants
and
are
not
their
documents,
then
none
of
the
applicants
has
any
standing
before
this
Court
to
request
any
relief
regarding
those
documents.
It
is
only
those
persons
who
have
an
interest
in
them
who
may
be
heard
on
any
issue
affecting
the
documents.
No
such
person
is
before
the
Court.
Thus,
even
if
I
did
have
jurisdiction
to
decide
that
issue
and
I
have
already
held
that
I
do
not,
it
could
not
be
decided
at
the
request
of
the
present
applicants.
For
the
above
reasons,
the
cheques
and
bank
statements,
which
I
personally
resealed
following
the
hearing
and
turned
over
for
safekeeping
to
the
District
Administrator
of
this
Court
in
Montreal,
will
be
turned
over
to
the
solicitor
for
the
Attorney
General
for
Canada
or
his
duly
authorized
representative
to
be
dealt
with
in
accordance
with
the
provisions
of
the
Income
Tax
Act.
Subsection
232(9)
provides
that
no
costs
may
be
awarded
upon
the
disposition
of
any
application
under
section
232.
Email this Content