A.G. (Canada) v. Pica, 86 DTC 6001, [1986] 1 CTC 155 (Ont CA)

Cory, J.A.:—The Attorney General of Canada has brought this appeal from a judgment dated February 4, 1985 which set aside a “retention order” made by the Honourable Judge Warrender pursuant to the provisions of subsection 231(2) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970- 71-72, c. 63), as amended. As well, the judgment directed that the documents seized and retained should be returned to the respondents.

Factual Background

In view of the conflicting conclusions reached by the trial judge and the Motions Court judge on the evidence, the facts must be set out in more detail than would ordinarily be required.

In 1979, Carolyn Davis was an employee of the Department of National Revenue in the Special Investigation Section in the Hamilton office. On August 30 of that year, she received a referral from the collections section of the Department requesting that consideration be given to the bringing of a prosecution against Antony Pica, Frank Pica, and the several corporations which they controlled, for breaches of paragraph 239(1)(a) of the Income Tax Act, (filing false returns), and paragraph 239(1 )(d) of the Income Tax Act (evading payment of taxes).

The referral described circumstances under which payroll deduction assessments had been made against Dax Properties Limited ("Dax"), and earlier against Astro Form Construction Limited ("Astro") and Pro Form Construction Limited ("Pro Form”) for employee taxes deducted at source but not remitted. It was said that construction contracts were held by separate "Pica" controlled corporations, namely, Steeltown Construction Limited ("Steeltown") and Dax. The employees of those companies were paid by other Pica corporations, specifically, Astro, Pro Form and a numbered Ontario company (376599). None of these "labour" companies had any assets. It was indicated that no action had been taken against Astro or Pro Form because "the companies had become defunct and had no assets". A reference was made to ongoing investigations of the Picas for charging personal expenses to the corporations.

When she received the memorandum Davis commenced her investigations. She examined the income tax returns of the corporations and the Picas and the financial statements filed with those returns. In addition, she met with the person who prepared the referral as well as the payroll auditor. She reviewed the payroll audit report and notes. Her investigations led her to the opinion that a scheme had been developed to avoid the payment of taxes and that there was a probability that a breach of section 239 of the Income Tax Act had occurred. She believed that the affairs of the Pica corporations were so arranged that a separate corporation served as the "labour corporation". Those separate corporations made the necessary deductions from the employees but failed to make the requisite remittances. They were without assets with the result that they "ended up being judgmentproof". This pattern had repeated itself since 1973. Davis believed that there must be an underlying reason for the inadequate funds in the bank accounts of the labour corporations which were required to remit the amounts withheld from the employees.

On December 4, 1979, Davis, together with her supervisor, Mr. Johnson, attended at the business address of the corporate respondents. The purpose of the attendance was to discuss with the Picas their reasons for not having made the proper remittances and to obtain explanations as to why there were inadequate funds in the bank accounts to make those remittances. Davis spoke to the respondents' bookkeeper. The bookkeeper explained that she had completed the forms pursuant to instructions received from Frank Pica as to how much should be shown on the forms to be submitted to the tax department.

Davis spoke to the Picas to find out why funds were not available to make the proper remittances. The Picas simply told her that there was not suffi- cient money in the bank accounts. Davis was not satisfied with this explanation and advised them that the Department would want to do a full-scale “in-depth" investigation ‘which would involve looking at the total financial position of the companies and the individuals. She stated that the Department would be interested in determining if there had been unreported income earned or false expenses claimed, whether the returns were filed correctly and in the proper amounts and whether or not there were any discrepancies.

Based upon the statements made by the bookkeeper and by the Picas, Davis and her supervisor were of the opinion that breaches of the Income Tax Act had been committed by the Picas and their corporations. They then indicated to the Picas that they intended to seize the relevant records pursuant to paragraph 231(1)(d) of that Act. The supervisor telephoned Mr. Brian Nichols, a solicitor specializing in tax work who acted for the Picas, and advised him of their intentions. Mr. Nichols counselled the Picas to co-operate in making the requested documents available.

The investigators asked for and received from the Picas specific records. These included the financial books and records, the original books of account, the general ledgers and accounts payable ledgers of the companies and the individuals being investigated for the pertinent years, 1973 to 1979. The investigators identified the documents as pertaining to the appropriate time span and to the specific corporations and individuals being investigated. The seizure cannot be termed a wholesale seizure. All current documents were left behind as were documents that did not pertain to the specific corporations for the years in question. It is worthy of note that it was the Picas themselves who brought forward the documents requested.

The Picas indicated that further relevant documents were located in their homes. As a convenience to the Picas, it was arranged that they would bring them into the Department's offices in Hamilton on December 20. On that day the Picas arrived with the additional records. They were accompanied by their lawyer, Mr. Nichols. Discussions were held pertaining to the scope and purpose of the seizure. Mr. Nichols was specifically told that the investigators were “concerned about the circumstances under which Astro Form Construction and Pro Form Construction did not make source remittances" and that the failure was caused by “some wrongdoing on behalf of either Frank Pica or Tony Pica". He was told that any charges brought would be under section 239 of the Income Tax Act.

The next day, On December 21, Davis advised the corporations and individuals from whom the records had been seized that the documents were being held under seizure but would be available for examination. Davis then took three steps with regard to the documents. First, she diarized the date by which an application for a retention order would have to be made. She next made a detailed inventory of the 48 boxes of documents seized. Lastly, she prepared an affidavit for use on the application before Judge Warrender for retention of the documents.

In the affidavit that she prepared for the application, Davis deposed that she had done the following:

(1) examined the income tax returns and attached statements of the corporations and the T-4 summaries of remuneration paid for 1974 through 1978;

(2) examined the general ledgers, cheque registers, bank deposits and other books and records of the corporations for the taxation years 1974 through 1978;

(3) examined the working papers and financial statements of the corporations prepared by E.P. Nolan, Chartered Accountant; and

(4) examined the inter-company transactions between Steeltown, Pro Form and Astro for the taxation years 1974 through 1979.

She then went on to state that she had determined:

(1) that the labour component of their construction contracts had been subcontracted by Steeltown to Pro Form and Astro in 1976 and 1977 and by Dax to 376599 for 1978 and 1979;

(2) that payroll deductions were not remitted for certain months in 1977 by Astro, by Pro Form for 1977, by 376599 for 1978 and by Dax for 1979;

(3) that transactions including labour contracts which commenced in 1974 were not terminated until 1977,1978 or 1979, and that other transactions regarding the inter-company transfer of assets cover the taxation years 1974 through 1979; and

(4) Frank Pica and Tony Pica were “knowledgeable” and responsible for the non-remittance of taxes by the corporations.

Davis further deposed that:

she had reasonable grounds for believing that a violation of section 239 of the Act had been committed by Astro for the year 1977, by Pro Form for the year 1977, by 376599 for the year 1978, by Dax for the year 1979 and by Frank and Antony Pica for the years 1977, 1978 and 1979. She went on to say that the records she had earlier described might be required as evidence in any subsequent criminal or civil proceedings brought against any of the corporations or Frank and Tony Pica.

The application was duly made pursuant to subsection 231(2) of the Income Tax Act and the order was granted by Judge Warrender on April 1, 1980. By letters dated April 3, 1980, Davis sent to the respondents copies of the retention order and the application. Brian Nichols also received a copy of the order. He was not upset by it and took no action in response to it.

On November 24, 1982, Nichols requested and received a copy of the Davis affidavit. In January of 1983, Nichols attended at a meeting with officials of the special investigation section and was advised that criminal prosecution would be recommended against the respondents.

On July 18, 1983, an information was sworn charging Frank and Antony Pica, each as an officer, director or agent of Steeltown and Dax with offences committed contrary to paragraphs 239(1)(a) and (d) of the Income Tax Act in respect of unreported income, false expenses and filing false returns for the period covering 1973 to 1980. Among the records seized and retained by the Department of National Revenue were documents required for the prosecution of these charges.

Several appearances were made by the parties in the Provincial Court (Criminal Division) of Hamilton-Wentworth. Eventually the trial of these charges commenced on October 29, 1984, before His Honour Judge Stiles. As late as October 11, Crown counsel had not been advised by counsel for the defence that they intended to challenge the legality of the seizures and retention order. During the trial, a motion was brought by defence counsel to challenge the validity of the Minister’s certificate made under subsection 244(4) of the Income Tax Act and to obtain a ruling that the documents seized and retained by the Department of National Revenue were inadmissible pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

Ruling of Judge Stiles as to the Validity of the Seizure and Detention Order and Thus the Admissibility of the Documents Seized.

At the outset, it must be remembered that Judge Stiles had the inestimable advantage of seeing and hearing the witnesses called on the motion to determine the validity of the seizure and retention order. He found that from the outset the Department of National Revenue had reasonable grounds to suspect the bona tides of the Picas and their corporations, particularly with regard to the failure to remit the source deductions. He determined that no lack of good faith had been displayed by the Department. Rather, Department investigators advised the Picas and their lawyer at an early date that they were considering proceeding with charges for breaches of section 239 of the Income Tax Act. He found that neither the provisions of paragraph 231(1)(d) of the Income Tax Act, nor the facts presented to him with regard to the seizure itself could constitute a violation of section 8 of the Charter.

The trial judge went on to say that the seizure made on December 4 and continued on December 20 was valid and not a “wholesale” seizure.

He expressed some doubt as to whether he could go behind the retention order of Judge Warrender. Nevertheless, he concluded that if it was open to him to do so then, in his opinion, there was sufficient material contained in the Davis affidavit to give the Minister reasonable and probable grounds to believe that there had been a violation of the Act and that the seized documents might be required as evidence in relation to that breach. In reaching this conclusion he was careful to consider only the affidavit of Carolyn Davis and not her testimony on the motion.

All the matters the trial judge dealt with were clearly within his jurisdiction. He considered the submissions carefully and gave extensive reasons for his ruling that the documents were admissible subject to their relevancy being established. If, indeed, an error was made by the judge at trial, that is a matter for review on appeal.

Reasons of the Motions Court Judge Ordering the Return of the Seized Documents to the Respondents.

By way of notice of motion dated November 6, the day before the ruling given by Judge Stiles, the respondents moved to set aside the retention order of Judge Warrender and sought the return of the documents seized.

The learned judge hearing the motion found that the district taxation office investigators did not act in good faith. He believed that the investigators misled the Picas and their counsel as to the nature of the offences they were investigating. He held that the seizure of the documents was improperly made and that, as a result, the retention order must be set aside. He went on to conclude that, in any event, inadequate material had been presented to Judge Warrender to permit him to make the retention order. In the result, he directed that the documents seized be returned to the Picas and that the cost of the application be paid by the Attorney General of Canada.

Was there a lack of good faith?

This aspect of the case was of great if not fundamental concern to the judge hearing the application. The trial judge who, as I have said, had the benefit of seeing and hearing the witnesses came, correctly I believe, to the opposite conclusion.

The investigators at all times looked upon the failure to remit the required amounts as an indication that there had been a breach of paragraphs 239(1)(a) and (d) of the Income Tax Act. It was the opinion of the local director's office that the failure to pay the requisite funds flowed from the charging of improper expenses to the corporations and the failure to disclose all income earned. This suspicion was made very clear to the Picas and their counsel from the very outset. Indeed, this was conceded in the evidence of the Picas’ solicitor, Mr. Brian Nichols.

On December 4, the occasion of the first attendance at the Picas’ offices, it was made clear to them that the Department required their records and was investigating wrongdoing on their part. It was made crystal-clear to the Picas and to their solicitors at the next meeting on December 20 that the Department was concerned that the failure to make the proper remittance was Caused by some wrongdoing on the part of the Picas. They were told that the Department was going to examine all the circumstances to see if the direct cause of the failure to remit was some wrongdoing on their part.

In light of the facts I have set out earlier and repeated here, I am of the view that the judge hearing the application misapprehended the evidence or was not referred to all the relevant evidence that was before Judge Stiles at trial. The learned Motions Court judge failed to appreciate that the failure to remit was simply one aspect, one factor, leading to the Department's conclusion that there had been a breach of section 239. The investigators were at all times open and straightforward in their dealing with the Picas and their solicitor. The finding of a lack of good faith by the Motions Court judge was erroneous. There was no basis established which would justify his reaching a conclusion diametrically opposed to that of the trial judge.

The validity of the original seizure.

The seizures were made pursuant to paragraph 231(1)(d) of the Income Tax Act. That section provides:

231. (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.

There is no doubt that the section permits an intrusion upon personal rights and property. Those intrusions are minimized to some extent by the provisions in the Act that those conducting the search must be officers of the Department, duly named in the information. Presumably such officers have sufficient knowledge of tax matters to confine the seizures to what is relevant. See In re M.N.R. v. Paroian et al., [1980] C.T.C. 131 at 138; 80 D.T.C. 6077 at 6083.

It is to be observed that the section permits the seizure of any document that may be required as evidence as to the violation of any provision of the Act.

The respondents relied heavily upon the case of Kelly Douglas and Company Limited v. The Queen et al., [1981] C.T.C. 457 at 461-62; 82 D.T.C. 6036 at 6039-40 (B.C.S.C.). This case was put forward for the proposition that, regardless of the circumstances, documents may be seized only if they have been examined individually for their evidentiary value. This cannot be correct. In this regard, I agree with the reasons of Hartt, J. in a ruling made on April 10, 1985, in R. v. Joseph Burnett and Ruthbern Holdings Ltd., [1985] 2 C.T.C. 227.

As noted by Hartt, J. at 238:

A search and seizure of the kind authorized here would take months to complete if each document had to be examined individually. To interpret the legislation in the way urged could well lead to the serious disruption of private and business premises, could involve an inordinate strain on public resources, and might well found a legitimate complaint that the manner in which a search is executed is oppressive. To insist that in all cases the determination of relevance be based upon the examination of the documents at the time of the search is similarly impractical. It seems to me that the search must be as detailed as is necessary to determine whether the documents may afford evidence of a violation and that the detail required will depend on how broad the standards of relevance properly are.

It seems to me that the standards both for how detailed an examination of the documents must be and for how to assess whether the documents may afford evidence of a violation, must depend to a large degree on the circumstances of the particular investigation. Generally speaking, the more complex the transactions being investigated, the broader the standards of relevance will be.

These conclusions are applicable to this case.

The factual background makes it clear that the investigators believed that the Picas and their corporations were engaged in a scheme to avoid the payment of taxes. It was therefore necessary for the investigators to review not only the corporate financial records but the inter-company transactions and relations between the Picas and their corporations. It must be remembered that it was the Picas who established a pattern of complex dealings and a pattern of failing to make remittances in circumstances that required to be investigated. In light of the facts and circumstances of this case, the seizure made could not be deemed to be unreasonable.

The validity of the retention order of Judge Warrender

Although the seizure of the documents was reasonable, it remains to be determined whether the retention order was valid. The respondents contend that the affidavit filed in support of the application for the order did not state that the documents were needed in relation to a violation of section 239. In addition, certain technical objections were raised with regard to the affidavit which, it was contended, render the order invalid. For example, it was said that the affidavit only referred to reasonable grounds for belief whereas pursuant to the provisions of the Income Tax Act, it should have stated that the Minister had reasonable and probable grounds to believe that there had been a violation of the Act and that the seized documents might be required as evidence in relation to that breach.

The relevant portions of section 231 provide as follows:

231. (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.

(2) The Minister shall

(a) within 120 days from the date of seizure of any documents, books, records, papers or things pursuant to paragraph (1 )(d), or

(b) if within that time an application is made under this subsection that is, after the expiration of that time, rejected, then forthwith upon the disposition of the application,

return the documents, books, records, papers or things to the person from whom they were seized unless a judge of a superior court or county court, on application made by or on behalf of the Minister, supported by evidence on oath establishing that the Minister has reasonable and probable grounds to believe that there has been a violation of this Act or a regulation and that the seized documents, books, records, papers or things are or may be required as evidence in relation thereto, orders that they be retained by the Minister until they are produced in any court proceedings, which order the judge is hereby empowered to give on ex parte application.

On this aspect of the case, the respondent relied upon the reasons for judgment of this Court given by Morden, J.A. in In re A.G. (Canada) v. Usarco Limited, [1980] C.T.C. 145; 80 D.T.C. 6085 (Ont.). In Usarco, Morden, J.A. made a number of comments as to the form the supporting affidavit should take. He pointed out that subsection 231(2) requires the Minister or, by virtue of regulation 900(5), other persons, including the Director, to have reasonable and probable grounds to believe in the existence of the matters referred to in the affidavit, rather than the deponent who, in the Usarco case, Was an investigator. He considered that the affidavit should state that the Minister or Director had reasonable and probable grounds for holding the requisite belief.

Morden, J.A. noted, as well, that the section requires that there be reasonable and probable grounds to believe that a violation of the Act had been committed, whereas the affidavit in Usarco referred only to reasonable grounds for such a belief. However, he observed that he had simply adverted to those matters and was not basing his conclusion upon them. He stated that although they might be no more than matters of form, they might also be symptomatic of a general lack of attention to the specific requirements of the section.

Morden, J.A. stated the basis for his determination that the material presented on the application for the retention order was inadequate in this way at 151-52 (D.T.C. 6090):

At the heart of the matter is the question whether there was evidence capable of showing reasonable and probable grounds for the Minister’s believing (1) that there had been a violation of the Act or a regulation and (2) that the seized documents were or may have been required as evidence in relation thereto. With respect to (1) I cannot say that there was no evidence capable of supporting the requisite belief, although I quite appreciate, on what is stated, the nature of the difficulties the Crown might face in proving its case against Usarco. With respect to (2), it is my opinion that the affidavit contains no statements which could support a belief that the seized documents are or may be required as evidence in relation to any violation. The affidavit simply does not attempt to identify or describe, even in a general way, what documents were seized. This being the case, there was nothing in the affidavit to which the judge could direct his mind on the important question of whether the Minister had reasonable and probable grounds to believe that the seized documents were, or may have been, required as evidence in relation to the alleged violation.

It is noteworthy that even though it was found that the retention order was invalid, the Court refused to order the Crown to return the documents seized to the applicant.

The affidavit under consideration in this case contains some of the same errors in form that were referred to by Morden, J.A. However, although it is not as detailed as one might wish, this affidavit is a great improvement over that which was before the Court in Usarco. Here, the affidavit did identify and describe, in both a general and reasonably particular way, the documents which were seized. As well, it specifically indicated that there were reasonable grounds for believing that Astro, Pro Form, 376599, Dax and Frank and Antony Pica had committed violations of section 239 of the Income Tax Act for specified years. The affidavit by clear inference indicates that the Minister (or the Director) had reasonable and probable grounds for believing that there had been a violation of section 239 of the Act and that the seized documents were required as evidence in relation to those breaches. The material presented was sufficient for Judge Warrender to base his order upon it. The retention order therefore was validly made.

Are the Provisions of section 8 and section 24 of the Charter Applicable in this Case?

Although the respondents allege a violation of their Charter rights, I am in agreement with the trial judge that the Charter is not applicable to the facts of this case. Both the seizure and retention order were made before the enactment of the Charter. There is no suggestion that any post-Charter violations have occurred.

Even if it should be determined that the pre-Charter search was unlawful or unreasonable in some way, section 8 of the Charter would not apply as it does not have a retrospective effect. See R. v. Longtin (1983), 5 C.C.C. (3d) 12 (Ont. C.A.). In the circumstances of this case, the Charter need not be considered.

Was this application appropriate?

The respondents' position was that this application was in the nature of certiorari and that it was not a collateral attack on an evidentiary ruling of a trial judge. Rather, it is put forward that this application is for the return of the documents. Nonetheless, I am of the view that, like a rose that would smell as sweet by any other name, this application is in fact a collateral attack upon an evidentiary ruling made by a trial judge. The ruling was made in the course of the trial and it was clearly within the jurisdiction of that judge. Any objections with regard to the ruling might form the basis for an appeal but do not and should not form the basis for an application of this sort. Cases should not be fragmented, unduly delayed and protracted. Both the accused and society have an interest in obtaining a trial decision in as expeditious a manner as possible. The frailties of memory, the pressures of the passage of time, the very mortality of man, all argue for a speedy and final resolution.

This action is a classic example of the problems that arise when actions are fragmented. Contemporaneously with this application, a motion was brought for prohibition. That motion, too, was brought on a very questionable basis alleging that the action was out of time. The application was refused by Montgomery, J. The accused launched an appeal which was dismissed. The fact that the prohibition order was under appeal was then used in argument before the Motions Court judge to demonstrate that the granting of the application would not result in prejudicial delays of the trial.

With the greatest respect to the Motions Court judge, he ought to have refused this application. This conclusion follows from the facts of this case and from the overwhelming weight of appellate decisions dealing with the issue. The respondents were sent a copy of the order the day after it was made on April 1, 1980. In November of 1981, at the request of the solicitor for the respondents, a copy of the affidavit of Carolyn Davis was sent to them. Yet, despite the early receipt of this information, nothing was done by the respondents until the trial was commenced. The delay in bringing the application was in itself more than sufficient justification for refusing it. The aspect of delay apparent in this case is of such an overwhelming nature that there is no alternative but to overrule the learned Motions Court judge.

In addition, the authorities both before and after the passage of the Charter have stressed that an evidentiary ruling made in the course of a trial should not be collaterally attacked. See, for example, Wilson v. The Queen (1983), 9 C.C.C. (3d) 97 (S.C.C.). Evidentiary rulings are properly challenged on appeal and not by way of applications in the nature of certiorari. To permit piecemeal attacks would fragment and delay the orderly process of trials with resulting prejudice to the accused and the community. Processes as simple and basic as the scheduling of trials and the attendance of witnesses would become matters of complexity and uncertainty challenging the essential efficiency and effectiveness of the trial process.

It is true that prerogative relief may be granted to prevent jurisdictional error but the mere fact that errors have been committed which may be jurisdictional in nature does not mean that prerogative relief must be granted. See Re Anson and The Queen (1983), 4 C.C.C. (3d) 119. The examples of the strict approach taken by appellate courts to the granting of prerogative relief are numerous. Significantly, most of the cases arise out of preliminary hearings or on applications brought before trial. Only very rarely are such applications brought after the commencement of a trial.

The approach must be stricter still when the impugned evidentiary ruling has been made during the course of a trial. This has been said in a number of jurisdictions in a variety of ways. The message is, however, clear, emphatic and consistent. Prerogative relief will be but rarely granted to test evidentiary rulings.

This position is founded upon two bases. First, on a motion of this sort, the court must always exercise the greatest caution and restraint when reviewing evidentiary rulings. Such decisions come squarely within the jurisdiction of the trial judge. It follows that they are only properly reviewable upon an appeal and not upon a motion in the nature of certiorari or any other prerogative writ. This is so even if the conclusion of the trial judge appears to be clearly erroneous. The sole exception to this rule would arise where the decision regarding the evidence amounted to such a gross denial of natural justice that it would amount to a loss of jurisdiction. In those exceptional circumstances, the trial judge would be deemed to be acting without jurisdiction.

Secondly, policy considerations are involved. The decisions all express concern with the chaos threatened by interruptions of the trial process. If, during the course of a trial, every evidentiary ruling were to be pursued by appeals to the Supreme Court of Canada, the resulting delays would place intolerable administrative burdens on the trial court system and impose inordinately high burdens of costs on the accused and ultimately on the community. The following cases are illustrative of the strict approach taken to motions for prerogative relief in these circumstances: Re Baptiste and The Queen (1982), 65 C.C.C. (2d) 510 (B.C.C.A.), Re Kendall and The Queen (1982), 144 D.L.R. (3d) 185 (Alta. C.A.), Re Anson and the Queen, supra, Re Krakowski and The Queen (1983), 4 C.C.C. (3d) 188 (Ont. C.A.), which cited with approval Re Anson and The Queen, supra, Blackwoods Beverages Ltd. v. The Queen (1984), 47 C.P.C. 294 (Man. C.A.), Re Potma v. The Queen (1983), 144 D.L.R. (3d) 620 (Ont. C.A.), which cited with approval Re Kendall and The Queen, supra, and Re Bird and Peebles and The Queen (1984), 12 C.C.C. (3d) 523 (Man. C.A.).

This decision will not leave an accused devoid of remedies. Obviously evidentiary rulings may still be challenged on appeal. As well, in appropriate circumstances, a seizure of documents or a retention order may be challenged by means of an application brought in a timely manner well before the commencement of a trial or preliminary hearing.

In this case, the judgment of the Motions Court judge resulted in the very delay, fragmentation and disruption which should be discouraged. In the result, I would allow the appeal and set aside the order of the Motions Court judge. The Court may be spoken to as to why the costs of the appeal and the application should not be payable by the respondents.

Appeal allowed.