Morden,
JA:—In
this
appeal
we
are
primarily
concerned
with
the
proper
interpretation
of
subsection
231(4)
of
the
Income
Tax
Act,
RSC
1952,
c
148
as
enacted
by
SC
1970-71-72,
c
63
section
1.
This
provision
and
subsection
(5),
which
is
related
to
it,
read:
(4)
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
superior
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
calls
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.
(5)
An
application
to
a
judge
under
subsection
(4)
shall
be
supported
by
evidence
on
oath
establishing
the
facts
upon
which
the
application
is
based.
H
O
Merrett,
a
Director
General,
Special
Investigations
Directorate,
Department
of
National
Revenue,
Taxation,
sought
to
avail
himself
of
this
provision
in
June
of
1977
by
giving,
in
a
document
entitled
“AUTHORIZATION
TO
ENTER
AND
SEARCH’’,
some
thirty-four
named
“officers
of
the
Department
of
National
Revenue’’
authority
to
enter
and
search
certain
specified
premises.
(There
is
no
dispute
that
by
reason
of
paragraph
221
(1
)(f)
of
the
Income
Tax
Act
and
Regulation
900(5)
Mr
Merett
had
the
powers
of
the
Minister
to
act
under
subsection
231(4)).
The
relevant
parts
of
the
authorization
read:
The
Director
General,
Special
Investigations
Directorate,
Department
of
National
Revenue,
Taxation,
hereby
authorizes
[the
named
thirty-four
officers],
or
any
of
them,
together
with
such
members
of
the
Royal
Canadian
Mounted
Police
or
other
peace
officers
as
they,
or
any
of
them,
may
call
on
to
assist
them,
or
any
of
them,
to
enter
and
search,
if
necessary
by
force,
the
following
premises
and
any
receptacles
or
places
therein:
(f)
The
offices
of
Paroian,
Courey,
Cohen
&
Houston,
Lawyers,
and
all
storage
facilities
occupied
or
controlled
by
them
at
875
Ouellette
Avenue,
Windsor,
Ontario.
for
documents,
books,
records,
papers
or
things
pertaining
or
relating
to
Collavino
Brothers
Construction
Company
Limited
that
may
affect
evidence
as
to
the
violation
of
any
provision
of
the
Income
Tax
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
.
.
.
GIVEN
under
my
hand
at
the
City
of
Ottawa,
Province
of
Ontario,
this
24th
day
of
June,
1977.
“H
O
Merrett”
Director
General,
Special
Investigations
Directorate
of
the
Department
of
National
Revenue,
Taxation.
Other
parts
of
this
document
refer
to
the
business
premises
of
Collavino
Brothers
Construction
Company
Limited,
those
of
Kendan
Manufacturing
Limited,
the
private
residence
of
Dan
Bryan,
two
of
the
offices
of
Coopers
&
Lybrand,
Chartered
Accountants,
in
the
City
of
Windsor—and
other
specified
premises.
Those
parts
relating
to
Coopers
&
Lybrand
have
already
been
before
the
courts:
In
re
Collavino
Brothers
Construction
Company
Limited,
[1978]
2
FC
642;
[1978]
CTC
100;
78
DTC
6050
reversed,
on
the
question
of
the
jurisdiction
of
the
Federal
Court
of
Appeal,
by
the
Supreme
Court
of
Canada
in
MNR
v
Coopers
and
Lybrand,
[1979]
1
SCR
495,
[1978]
CTC
829;
78
DTC
6528.
The
authorization
was
approved
by
His
Honour
Judge
Zalev
on
August
2,
1977.
The
approval,
which
is
typed
at
the
foot
of
the
authorization
reads:
After
having
considered
the
application
made
by
the
Director
General
of
Special
Investigations
based
on
the
affidavit
of
John
William
Brown,
I
hereby
approve
of
the
above
authorization,
which
approval
is
also
indicated
on
the
preceding
page
by
my
initials.
DATED
AT
Windsor
this
2nd
day
of
August
1977.
“Carl
Zalev”
CARL
ZALEV
Judge
of
the
County
Court
of
Essex
On
August
10,
1977
certain
documents
relating
to
Collavino
Brothers
Construction
Company
Limited
were
seized
from
Paroian,
Courey,
Cohen
&
Houston,
under
protest,
pursuant
to
this
authorization
and
were
deposited
with
the
Deputy
Sheriff
of
the
County
of
Essex.
By
notice
of
motion
dated
August
15,
1977
directed
to
the
Deputy
Attorney
General
of
Canada
and
the
Deputy
Sheriff
of
the
County
of
Essex,
Paroian,
Courey
moved
for
an
order
“setting
aside”
this
authorization
on
several
grounds
and
for
other
relief.
After
hearing
this
motion,
Morand,
J
ordered
that:
.
all
documents
seized
from
the
offices
of
Messrs
Paroian,
Courey,
Cohen
&
Houston
pursuant
to
the
authorization
to
enter
and
search
given
under
the
hand
of
H
O
Merrett,
Director
General,
The
Special
Investigations
Directorate
of
the
Department
of
National
Revenue,
Taxation,
and
approved
by
His
Honour
Judge
C
Zalev,
on
the
2nd
day
of
August,
1977,
at
the
City
of
Windsor,
in
the
County
of
Essex,
with
the
exception
of
those
documents
which
relate
to
the
dealings
between
Collavino
Brothers
Construction
Company
Limited,
Dan
Bryan
and
Kendan
Manufacturing
Limited
concerning
the
construction
of
the
Bryan
residence
and
the
construction
of
an
addition
to
the
plant
of
Kendan
Manufacturing
Limited,
be
returned
to
the
applicants.
The
Minister
appeals,
submitting,
in
effect,
that
the
application
should
have
been
dismissed
outright.
The
ground
of
appeal
reads:
.
.
.
the
learned
Judge
erred
in
law
in
holding
that
the
agents
of
the
Minister
were
only
entitled
under
the
authorization
to
seize
those
documents
in
possession
of
the
applicant
which
related
to
the
dealings
between
Collavino
Brothers
Construction
Company
Limited,
Dan
Bryan
and
Kendan
Manufacturing
Limited
concerning
the
construction
of
the
Bryan
residence
and
the
construction
of
an
addition
to
the
plant
of
Kendan
Manufacturing
Limited
rather
than
documents
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Income
Tax
Act
or
a
regulation.
Paroian,
Courey
cross-appealed,
asking
that
Morand,
J’s
order
be
varied
to
provide
that
“the
Order
of
His
Honour
Judge
Zalev
dated
the
2nd
day
of
August,
1977”
be
set
aside
outright.
Before
dealing
with
the
evidence
that
was
before
Judge
Zalev
and
Morand,
J
I
think
it
would
be
helpful
to
say
something
about
the
relief
sought
and
the
jurisdiction
of
the
court
to
grant
it.
Notwithstanding
the
language
of
the
original
notice
of
motion,
the
relief
sought
was
that
of
certiorari
to
quash
the
approval
granted
by
Judge
Zalev.
The
Minister,
I
gather
from
Mr
Olsson’s
position,
is
prepared
to
look
upon
it
this
way.
If
the
applicant
was
successful
in
this
regard,
ie
if
the
approval
were
quashed,
the
authorization
would
be
“without
effect”:
MNR
v
Coopers
and
Lybrand,
Supra,
at
pp
506
and
508.
While
the
point
was
left
open
by
the
Supreme
Court
of
Canada,
the
Minister
concedes
that
a
county
court
judge's
approval
under
subsection
231(4)
is
subject
to
review
on
an
application
for
an
order
of
certiorari.
I
think
it
is
clear
that
the
county
court
judge,
acting
under
this
provision,
exercises
the
jurisdiction
of
an
inferior
court
(in
the
context
of
a
superior
court’s
supervisory
jurisdiction)
and,
therefore,
accept
that
this
concession
is
a
proper
one.
I
shall
deal
with
the
evidence
as
briefly
as
possible.
It
comes
down
to
an
allegation
that
Collavino
Brothers,
to
“accommodate”
Kendan
Manufacturing
Limited
and
Dan
Bryan,
made
false
and
deceptive
entries
in
its
books
(Income
Tax
Act,
paragraph
239(1)(c))
relating
to
construction
contracts
which
Collavino
Brothers
had
with
each
of
Kendan
and
Bryan.
In
more
detail,
the
evidence
disclosed
that
Bryan
was
the
Vice-President
of
Kendan
in
1974
and
1975.
Collavino
Brothers
entered
into
a
contract
with
Bryan
in
March
of
1974
to
build
a
house
for
him
for
$43,000.
The
costs
on
this
job
were
about
$90,397.
Bryan
had
paid
$37,200
to
Collavino
Brothers
as
of
November
30,
1976.
For
the
years
1974
and
1975
his
income
tax
returns
disclosed
only
employment
income
earned
from
Kendan.
Collavino
Brothers
also
undertook
the
construction
of
an
addition
to
the
existing
plant
of
Kendan.
Its
net
billing
to
Kendan
was
$360,000.
It
reported
to
its
auditors,
Coopers
&
Lybrand,
contract
revenue
with
respect
to
Bryan
of
$37,200
and
total
costs
of
$90,397
and,
with
respect
to
Kendan,
contract
revenue
of
$360,000
and
total
costs
of
$226,827.
These
amounts
were
in
accord
with
what
was
on
Collavino
Brothers’
revenue
and
cost
cards.
John
William
Brown,
an
office
of
the
Department
of
National
Revenue,
who
swore
the
affidavit
put
before
Judge
Zalev,
said
in
paragraphs
12,
13,
19
and
24(c)
thereof:
12.
...
I
have
reasonable
grounds
to
believe
and
do
believe
that
Collavino
Brothers
Construction
Company
Limited
and
Mario
Collavino
have
made
false
or
deceptive
entries
in
the
books
of
account
of
the
said
Collavino
Brothers
Construction
Company
Limited
by
including
in
the
billings
for
the
construction
of
the
addition
to
the
plant
of
Kendan
Manufacturing
Limited,
an
approximate
amount
of
$53,197
as
being
a
portion
of
the
cost
of
the
residence
of
DAn
Bryan,
shareholder
of
Kendan
Manufacturing
Limited.
13.
.
.
.
I
have
reasonable
grounds
for
believing
and
do
believe
that
Collavino
Brothers
Construction
Company
Limited
has
committed
an
offence
under
Section
239
of
the
Income
Tax
Act
and
Amendments
thereto
by
making
false
or
deceptive
entries
in
the
books
of
account
of
the
said
Collavino
Brothers
Construction
Company
Limited
in
the
course
of
the
years
1974
and
1975.
19.
Paroian,
Courey,
Cohen
&
Houston
is
a
firm
of
lawyers
engaged
in
the
practice
of
law
in
the
municipality
of
Windsor,
Ontario.
The
said
law
firm
negotiated
various
transactions
for
Collavino
Brothers
Construction
Company
Limited
for
the
years
1974
and
1975
and
would
have
in
its
possession
legal
files
and
other
documents
relating
to
the
affairs
of
the
said
Collavino
Brothers
Construction
Company
Limited.
24.
As
a
result
of
my
enquiry,
I
have
reasonable
grounds
for
believing
and
do
believe
that
documents,
books,
records,
papers
and
things
that
may
afford
evidence
as
to
the
violation
of
any
provisions
of
the
Income
Tax
Act
or
a
regulation
may
be
found
in
the
following
premises
and
any
receptacles
or
places
therein:
(c)
The
offices
of
Paroian,
Courey,
Cohen
&
Houston,
lawyers,
and
all
storage
facilities
occupied
or
controlled
by
them
at
875
Ouellette
Avenue,
Windsor,
Ontario.
The
alleged
result
is
that
Kendan
claimed
a
capital
cost
allowance
on
the
amount
of
$360,000
“thereby
improperly
claiming
Capital
Cost
Allowance
on
the
amount
of
$53,197”as
a
deduction
for
1975,
and
Bryan
“has
not
reported
as
a
benefit
any
portion
of
the
$53,197
partial
cost
of
his
residence
paid
by
Kendan
.
.
.
in
his
T1
returns
of
income
for
the
years
1974
and
1975.’’
It
should
be
said
at
this
point
that
there
is
no
suggestion
whatsoever
that
Paroian,
Courey
had
any
knowledge
of
the
alleged
activities
of
Collavino
Brothers
or
are
in
any
way
implicated
therein.
Further,
Mr
Olsson
made
it
clear
in
the
course
of
the
argument
that
the
offence
alleged
against
Col-
lavino
Brothers
under
paragraph
239(1)(c)
does
not
relate
to
its
income
tax
position
but
rather
to
that
of
Kendan
and
Bryan.
Although
nothing
was
said
on
this
behalf
of
Paroian,
Courey,
I
have
some
difficulty
seeing
how
Col-
lavino
Brothers
can
be
liable
under
paragraph
239(1
)(c),
except
as
a
party
by
virtue
of
paragraph
21
(1)(b)
or
(c)
of
the
Criminal
Code.
Since
the
point
was
not
argued
I
express
no
concluded
opinion
on
it.
On
the
merits
of
the
application
before
him,
Morand,
J
said:
I
have
..
.
reviewed
the
affidavits
which
were
placed
before
Judge
Zalev
when
his
approval
to
the
authorization
was
sought
and
am
of
the
opinion
that
they
establish
certain
facts
which
disclose
reasonable
and
probable
grounds
for
the
belief
that
a
violation
of
the
Act
has
been
committed.
The
next
issue
which
I
must
decide
is
whether
or
not
the
documents
actually
seized
from
the
offices
of
the
applicant
were
documents
subject
to
seizure
within
the
terms
of
the
authorization.
The
authorization
itself
directs
the
persons
designated
therein
to
enter
and
search
the
offices
of
the
applicant
“for
documents,
books,
records,
papers
or
things
pertaining
or
relating
to
Collavino
Brothers
Construction
Company
Limited
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Income
Tax
Act
or
a
regulation
and
take
away
any
such
documents,
books,
records,
papers
or
things
and
retain
them
until
they
are
produced
in
any
court
proceedings
.
.
.”
(emphasis
added).
The
affidavit
filed
before
Judge
Zalev
related
facts
directed
toward
a
specific
violation
of
the
Act.
My
concern
is
with
the
use
of
the
word
“any”
in
the
authorization
which
is
admittedly
taken
from
the
words
of
the
enabling
section
itself.
Can
it
be
said
that
having
evidence
of
the
commission
of
a
violation
or
the
likelihood
of
the
commission
of
a
violation
of
the
Act,
that
the
subsequent
inclusion
of
the
word
“any”
justifies
the
seizure
of
all
documents
including
those
obviously
unrelated
to
the
violation
which
was
the
basis
of
the
authorization?
Cases
decided
in
relation
to
s
443
of
the
Criminal
Code
are
of
assistance
in
this
regard.
That
section
provides
for
the
issuance
of
a
warrant
for
search
and
seizure
where
there
are
reasonable
grounds
to
believe
that
“any
offence
against
this
Act
has
been
or
is
suspected
to
have
been
committed.’’
(s
443(1)(a)—emphasis
added).’’
In
fl
Rv
Colvin,
Ex
parte
Merrick
et
al,
[1970]
3
OR
612
it
was
held
that
the
documents
seized
must
be
relevant
or
apparently
relevant
to
the
suspected
offence
which
justified
the
issue
of
the
search
warrant.
Reference
may
also
be
made
to
Shumiatcher
v
A
G
of
Saskatchewan
and
Salterio,
JP
(1930),
129
CCC
267.
In
the
result,
and
without
delving
into
the
matter
of
the
claim
of
a
solicitor-client
privilege,
it
is
my
opinion
that
the
agents
of
the
Minister
were
only
entitled
to
seize
those
documents
in
possession
of
the
applicant
which
related
to
the
dealings
between
Collavino
Brothers
Construction
Company
Limited,
Dan
Bryan
and
Kendan
Manufacturing
Limited
concerning
the
construction
of
the
Bryan
residence
and
the
construction
of
an
addition
to
the
plant
of
Kendan
Manufacturing
Limited.
Those
files
which
deal
with
any
other
matter
excepting
those
mentioned
in
the
preceding
paragraph,
are
therefore
ordered
returned
to
the
applicant.
The
principal
contention
on
behalf
of
the
Minister
is
that
since
the
authorization
conformed
to
the
language
of
subsection
231(4)
the
approval
was
valid.
It
is
also
submitted
that
the
authorization
should
be
interpreted
in
the
light
of
Mr
Brown’s
affidavit,
to
relate
to
all
dealings
of
Collavino
Brothers
of
the
kinds
referred
to
in
the
affidavit
and
should
not
be
confined
solely
to
dealings
with
Bryan
and
Kendan
Manufacturing.
The
principal
contention
on
behalf
of
Paroian,
Courey
is
that
the
authorization
should
have
been
quashed
outright
since
it
exceeded
what
was
permissable
under
subsection
231(4).
It
also
submitted
that
there
was
sufficient
evidence
to
justify
its
approval.
In
support
of
the
submission
that
the
authorization
was
valid
because
it
used
the
very
language
of
subsection
231(4)
reference
may
be
made
to
the
following—if
not,
in
some
of
the
cases
for
their
reasoning,
at
least
for
their
results:
Bathville
Corporation
Ltd
et
al
v
Atkinson
et
al,
[1964]
2
OR
17,
affirmed
[1965]
1
OR
340;
[1964]
CTC
577;
64
DTC
5113;
Burnac
Corporation
Limited
et
al
v
MNR,
[1977]
CTC
593;
77
DTC
5414,
In
re
Corsini,
79
DTC
5356,
the
dissenting
judgment
of
MacKay,
DJ
in
Re
Collavino
Brothers
Construction
Company
Limited,
supra,
and
Granby
Construction
&
Equipment
Ltd
et
al
v
Mi
Iley
et
al,
[1974]
CTC
701;
74
DTC
6543.
Mr
Rolls,
on
behalf
of
Paroian,
Courey,
relies
upon
the
majority
judgments
in
Re
Collavino
Brothers
Construction
Company
Limited,
supra,
in
support
of
his
contention
that
the
authorization
was
broader
than
permitted
by
subsection
231(4)
and
also
upon
the
reasoning
of
Morand,
J
in
this
case,
particularly
that
part
placing
reliance
upon
the
principles
developed
in
the
cases
relating
to
search
warrants
under
the
Criminal
Code.
In
Re
Collavino
Brothers
both
Heald,
J
and
Urie,
J
read
“the
violation
of
any
provision
of
this
Act
or
a
regulation”
in
this
latter
part
of
subsection
231(4)
as
referring
to
the
violations
mentioned
in
the
earlier
part,
in
respect
of
which
the
Minister
has
reasonable
and
probable
grounds
to
believe
has
been
committed
or
is
likely
to
be
committed.
MacKay,
DJ,
in
dissent,
held,
emphasizing
“any”
in
“any
provision,”
that
there
was
no
necessary
connection
between
the
two
violations.
Once
there
is
evidence
of
one
violation
and
the
authorization
is
approved,
the
authorization
properly
relates
to
any
violation
of
the
Act
or
a
regulation.
I
accept
that
we
should
approach
legislation
of
this
kind
with
an
appreciation
of
the
value
which
the
courts
have
traditionally
placed
on
the
inviolability
of
private
property,
and
privacy,
against
all
forms
of
governmental
infringement
except
that
which
is
strictly
in
accordance
with
the
law.
This
necessitates,
of
course,
starting
the
inquiry
with
an
examination
of
the
language
of
the
statute
in
question
and
also
keeping
in
mind
that
Parliament
should
be
credited
with
having
taken
into
account
the
personal
value
which
will
be
affected
by
the
exercise
of
the
powers
being
conferred.
At
some
point
the
legislation,
reflecting
the
judgment
of
Parliament,
will
strike
a
balance
between
rights
of
property
and
privacy,
on
the
one
hand,
and
the
powers
necessary
for
the
government
to
execute
its
responsibility
to
administer
and
enforce
the
Income
Tax
Act
fairly
and
effectively,
on
the
other.
I
agree
with
the
approaches
expounded
by
both
Lord
Wilberforce
and
Lord
Diplock
in
a
recent
judgment
of
the
House
of
Lords
concerned
with
the
interpretation
of
taxation
search
and
seizure
legislation:
Commissioner
of
Inland
Revenue
and
Another
v
Rossminster
Limited,
December,
1979.
Lord
Wilberforce
said:
The
courts
have
the
duty
to
supervise,
I
would
say
critically,
even
jealously,
the
legality
of
any
purported
exercise
of
these
powers.
They
are
the
guardians
of
the
citizens’
rights
to
privacy.
But
they
must
do
this
in
the
context
of
the
times,
ie,
of
increasing
Parliamentary
intervention,
and
of
the
modern
power
of
judicial
review.
In
my
respectful
opinion
appeals
to
18th
century
precedents
or
arbitrary
action
by
Secretaries
of
State
and
references
to
general
warrants
do
nothing
to
throw
light
on
the
issue.
Furthermore,
while
the
courts
may
look
critically
at
legislation
which
impairs
the
rights
of
citizens
and
should
resolve
any
doubt
in
interpretation
in
their
favour,
it
is
no
part
of
their
duty,
or
power,
to
restrict
or
impede
the
working
of
legislation,
even
of
unpopular
legislation;
to
do
so
would
be
to
weaken
rather
than
to
advance
the
democratic
process.
Lord
Diplock
said:
What
has
to
be
disclosed
upon
the
face
of
the
search
warrant
depends
upon
the
true
construction
of
the
statute.
The
construing
court
ought,
no
doubt,
to
remind
itself,
if
reminder
should
be
necessary,
that
entering
a
man’s
house
or
office,
searching
it
and
seizing
his
goods
against
his
will
are
tortious
acts
against
which
he
is
entitled
to
the
protection
of
the
court
unless
the
acts
can
be
justified
either
at
common
law
or
under
some
statutory
authority.
So
if
the
statutory
words
relied
upon
as
authorising
the
acts
are
ambiguous
or
obsure,
a
construction
should
be
placed
upon
them
that
is
least
restrictive
of
individual
rights
which
would
otherwise
enjoy
the
protection
of
the
common
law.
But
judges
in
performing
their
constitutional
function
of
expounding
what
words
used
by
parliament
in
legislation,
mean,
must
not
be
over-zealous
to
search
for
ambiguities
or
obscurities
in
words
which
on
the
face
of
them
are
plain,
simply
because
the
members
of
the
court
are
out
of
sympathy
with
the
policy
to
which
the
Act
appears
to
give
effect.
Turning
to
the
language
of
subsection
231(4),
in
my
view
it
is
the
natural
construction
of
the
provision
to
read
“that
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation”
(my
emphasis)
as
encompassing,
at
least
potentially,
more
violations
than
that,
or
those,
referred
to
in
the
earlier
part
of
the
provision.
If
it
were
intended
to
restrict
the
second
mentioned
“violation”
to
that
referred
to
earlier,
this
could
have
been
done
by
simply
omitting
the
words
“of
any
provision
of
this
Act
or
a
regulation.”
I
think
that
these
words
make
it
clear
that
something
more
than
this
was
intended.
On
this
point
I
agree
with
the
reasons
of
MacKay,
DJ
delivered
in
dissent
in
Re
Collavino
Brothers
Construction
Company
Limited,
supra.
In
this
regard
the
language
of
subsection
231(4)
may
be
usefully
contrasted
with
that
in
subsection
231(2),
which
requires
the
Minister
to
have
“reasonable
and
probable
grounds
to
believe
that
there
has
been
a
violation
of
this
Act
or
a
regulation
and
that
the
seized
documents
[already
seized
under
paragraph
231
(1
)(d)]...
are
or
may
be
required
as
evidence
in
relation
thereto.”
This
provision,
which
is
in
relation
to
a
power
of
retention
rather
than
of
seizure,
makes
it
clear
that
the
documents
must
have
an
evidentiary
relationship
to
the
specified
violation.
Further
support
for
the
view
that
the
words
in
question
were
used
deliberately
may
be
found
in
the
French
version
of
subsection
231(4)
which
reads
“l’infraction
de
toute
disposition
de
la
présente
loi
ou
d’un
règlement
.
.
With
respect,
I
do
not
appreciate
the
logic
of
applying
cases
interpreting
the
basic
search
warrant
provision
in
the
Criminal
Code,
subsection
443(1).
The
structure,
language
and
subject
matter
of
subsection
231(4)
are
quite
different
from
those
of
subsection
443(1).
As
far
as
subject
matter
is
concerned,
subsection
231(4)
is
confined
to
a
comparatively
narrow
range
of
activity—for
all
practical
purposes,
some
form
of
tax
evasion—while
subsection
443(1)
relates,
according
to
its
terms,
to
“any
offence
against
this
Act.”
Related
to
this,
with
subsection
443(1)
of
the
Code
as
a
ready
model
of
search
and
seizure
legislation,
it
is
reasonable
to
think
that
subsection
231(4),
having
regard
to
its
special
subject
matter,
was
not
drawn
to
achieve
the
same
effect
as
subsection
443(1).
This
reinforces
the
plain
meaning
interpretation
of
subsection
231(4)
that
the
violations
in
respect
of
which
the
search
may
be
authorized
are
not
confined
to
the
violation
with
respect
to
which
there
are
reasonable
and
probable
grounds.
Furthermore,
I
do
not
interpret
subsection
231(4)
as
requiring
the
violations
in
respect
of
which
the
search
is
authorized
to
be
particularized
in
the
authorization
beyond
using
the
words
of
the
provision
itself.
(I
shall
deal
shortly
with
the
necessity
to
identify
the
persons
whose
violations
are
in
question
and
the
premises
to
be
searched.)
Cases
on
subsection
443(1)
of
the
Code,
because
of
the
terms
of
that
provision
and
its
subject
matter,
quite
understandably
require
the
offence
in
respect
of
which
the
warrant
issues
to
be
particularized
in
the
warrant.
The
same
approach
is
inapplicable
to
the
wording
and
subject
matter
of
subsection
231(4).
If
subsection
231(4),
contrary
to
my
interpretation
of
it,
restricted
the
search
to
the
violation
with
respect
to
which
there
were
reasonable
and
probable
grounds,
it
would
be
reasonable
to
imply
a
requirement
that
the
offence
be
particularized
in
the
authorization.
However,
once
it
is
accepted
that
the
authorization
extends
to
“evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation’’
(my
emphasis),
ie,
violations
beyond
those
with
respect
to
which
there
are
reasonable
and
probable
grounds,
I
can
see
no
grounds
for
implying
that
subsection
231(4)
requires
a
specification
in
the
authorization
of
particular
violations
by
their
alleged
facts
or
times,
etc.
It
is
implicit
in
the
legislation
that
this
would
not
be
possible.
No
doubt,
the
intention
of
the
provision
is
that
the
primary
object
of
the
authorized
search
will
be
to
obtain
evidence
of
the
violations
with
respect
to
which
there
are
reasonable
and
probable
grounds,
but
the
authorization
will
also
permit
the
search
for,
and
seizure
of
evidence
respecting
other
violations.
With
regard
to
such
violations,
the
legislation
does
not
require
the
setting
in
motion
of
a
fresh
application
for
a
new
authorization—and
so
on
from
time
to
time.
It
may
be
that
this,
particularly
in
an
area
that
is
confined
to
income
tax
offences,
is
not
a
significance
departure
from
existing
common
law
principles
(Chic
Fashions
(West
Wales)
Ltd
v
Jones,
[1968]
2
QB
299)
or
statutory
provisions
(Criminal
Code,
section
445)
which
allow,
in
certain
circumstances,
more
things
to
be
seized
than
those
covered
by
the
search
warrant.
With
respect
to
the
obvious
potential
intrusion
on
personal
rights
of
property
and
privacy,
to
which
I
have
already
referred,
it
is
obvious
that
Parliament
intended
safeguards
to
be
provided
by:
(a)
the
requirement
that
the
application
for
the
authorization
be
by
the
Minister
of
National
Revenue
or
some
other
senior
departmental
official
(Regulation
900(5));
(b)
the
requirement
that
the
authorization
be
approved
by
a
judge,
on
facts
established
by
evidence
on
oath,
and
(c)
that
those
conducting
the
search
will
be
officers
of
the
Department
and,
possibly,
other
persons
named
in
the
authorization
and
who
will,
accordingly,
have
sufficient
expertise
in
the
tax
matters
to
confine
seizures
to
what
is
relevant.
The
function
of
the
judge
is
the
most
important
safeguard.
It
is
implicit
in
the
provision
that
the
judge
is
not
to
act
as
a
rubber
stamp.
“The
judge
sits
to
scrutinize
[with
utmost
care]
the
intended
exercise
of
ministerial
discretion.’’
MNR
v
Coopers
and
Lybrand,
supra,
at
506.
He
has
a
duty
to
consider
the
cogency
of
the
evidence
put
before
him
in
determining
what
facts
it
“establishes’’.
He
surely
has
a
discretion,
in
a
proper
case,
to
withhold
his
approval,
if
he
considers
that
the
facts
do
not
justify
it.
It
would
not
be
possible
or
helpful
to
say
anything
more
on
the
subject
of
the
exercise
of
his
discretion,
except
with
respect
to
one
point:
although
the
provision,
as
I
have
said,
does
not
require
the
authorization
to
be
particularized
as
to
specific
offences,
I
would
not
wish
in
these
reasons
to
foreclose
the
possiblity
that
in
some
cases,
depending
upon
his
view
of
the
facts
established,
a
judge
could,
as
part
of
a
residual
discretion,
and
as
an
alternative
to
refusing
approval
outright,
approve
an
authorization
that
contained
some
limitations
as
to
its
scope.
I
express
no
concluded
opinion
on
this
point.
Apart
form
the
matter
as
to
whether
the
violations
in
respect
of
which
the
search
is
authorized
are
required
to
be
particularized,
there
is
the
question
whether
it
is
necessarily
implicit
in
the
legislation
that
the
premises
to
be
searched
and
the
persons
in
respect
of
whose
violations
the
search
is
authorized
are
required
to
be
identified.
There
can
be
no
doubt
that
the
premises
have
to
be
described
in
the
authorization.
They
are
described
in
the
authorization
before
us.
Further,
I
would
think
that
in
most
cases,
particular
where
the
premises
to
be
searched
are
those
of
third
parties,
such
as
lawyers’
offices
or
banks,
it
is
necessarily
implicit
that
the
persons
be
identified.
They
were
identified
in
the
authorization
in
the
present
case—“for
documents,
books,
records,
papers
or
things
pertaining
or
relating
to
Collavino
Brothers
Construction
Company
Limited
that
may
af
ford
evidence
.
.
|
I
need
not,
therefore,
pursue
the
point
further.
|
As
far
as
previous
authority
is
concerned,
reference
should
be
made
to
the
decision
of
this
Court
in
Bathville
Corporation
Ltd
et
al
v
Atkinson
et
al,
Supra,
which
was
concerned
with
the
validity
of
an
authorization
given
under
the
predecessor
of
subsection
231(4),
which
was
subsection
126(3)
of
the
Income
Tax
Act,
RSC
1952,
c
148.
That
section
read:
(3)
The
Minister
may,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
with
the
approval
of
a
judge
of
the
Exchequer
Court
of
Canada
or
of
a
superior
or
county
court,
which
approval
the
judge
is
hereby
empowered
to
give
upon
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
calls
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
which
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.
It
can
be
seen
that
this
provision,
beginning
with
“which
approval
the
judge
is
hereby
empowered
to
give,”
is
identical
to
subsection
231(4),
apart
from
the
inconsequential
substitution
of
“that”
for
“which”
in
“that
may
afford
evidence.”
Undoubtedly,
the
new
provision
contains
a
significant
change
in
its
opening
language
from
that
appearing
in
subsection
126(3).
The
authorization
in
Bathville
Corporation
(not
quoted
in
the
reasons
of
either
Moorhouse,
J
or
of
the
Court
of
Appeal)
filed
with
the
Court
reads
in
substantially
the
same
terms
as
that
in
this
case:
The
Assistant
Deputy
Minister
of
National
Revenue
for
Taxation
with
the
approval
of
the
Honourable
A
Alex
Cattanach
a
judge
of
the
Exchequer
Court
of
Canada,
granted
the
22nd
day
of
October,
1963,
hereby
authorizes
JAMES
LAUREN
GOURLAY
.
.
.
[several
other
persons
named],
officers
of
the
Department
of
National
Revenue,
or
any
of
them,
together
with
such
members
of
the
Royal
Canadian
Mounted
Police
or
other
peace
officers
as
they,
or
any
of
them,
may
call
on
to
assist
them,
or
any
of
them
to
enter
and
search,
if
necessary
by
force,
the
following
premises
and
any
receptacles
or
places
therein:
.
.
.
[four
premises
described]
for
documents,
books,
records,
papers
or
things
which
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Income
War
Tax
Act,
The
Income
Tax
Act
or
the
Income
Tax
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.
If
anything,
it
was
in
broader
terms
because
it
did
not
specify
the
person
whose
violations
were
in
question.
The
authorization
had
been
attacked
on
the
ground
that
it
did
not
comply
with
Criminal
Code
search
warrant
principles
([1964]
2
OR
at
19)
and
that
the
Exchequer
Court
Judge,
who
had
approved
the
authorization,
had
not
acted
judicially
and
had
delegated
his
powers
to
the
persons
named
in
the
authorization
([1965]
1
OR
at
341).
This
latter
submission
was
one
way
of
saying
that
the
authorization
should
have
specified
particular
violations.
At
341-42
of
[1965]
1
OR
Porter,
CJO
said
on
behalf
of
the
Court
of
Appeal:
This
issuance
of
the
authorization
in
the
first
instance,
depends
upon
the
view
of
the
Minister
that
a
purpose
related
to
the
administration
or
enforcement
of
the
Act
will
or
may
be
served
by
the
exercise
of
the
powers
conferred
upon
him
by
the
provisions
of
s
126(3).
Thereupon
a
Judge
of
the
Exchequer
Court
or
of
a
superior
or
County
Court
may
be
asked
upon
an
ex
parte
application
to
approve
the
exercise
of
the
ministerial
power.
We
take
the
view
that
there
was
amply
sufficient
material
for
the
learned
Exchequer
Court
Judge
to
grant
the
approval
sought
in
the
terms
in
which
it
was
granted
and
it
cannot
be
said
that
his
powers
under
the
section
were
not
exercised
judicially
or
that
he
had
failed
to
give
a
lawful
approval
to
the
Minister’s
exercise
of
his
powers
under
s-s
(3).
Mr
Rolls
submits
that
Bathville
Corporation
is
of
no
assistance
because
(a)
the
language
of
the
sections
has
changed
and
(b)
its
“underpinning”
was
that
the
approving
judge
was
acting
persona
designate—a
view
that
is
now
known
to
be
wrong:
MNR
v
Coopers
and
Lybrand,
supra.
With
respect
I
do
not
think
that
either
of
these
features
is
of
a
distinguishing
nature.
As
far
as
the
change
in
language
is
concerned
it
would
seem
that
the
reasoning
in
Bathville
would
apply
with
even
greater
force
to
the
present
provision.
It
might
well
have
been
thought
that
the
scope
of
“which
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation”
would
have
been
confined
by
particularization
in
an
actual
authorization
by
the
“purpose
related
to
the
administration
or
enforcement
of
this
Act”
as
set
forth
in
the
material
before
the
judge.
However,
the
Court
clearly
approved
an
authorization
repeating
the
language
of
the
statute.
For
the
reasons
which
I
have
already
given,
there
is
no
reasonable
basis
for
interpreting
the
present
legislation
as
requiring
that
the
authorized
search
be
confined
to
the
violation
with
respect
to
which
there
are
reasonable
and
probable
grounds.
It
is
true
that
Moorhouse,
J
placed
some
weight
on
the
fact
that
the
approving
judge
was
acting
as
a
persona
designate,
and
hence,
apparently,
was
not
required
to
act
judicially,
but
this
does
not
appear
to
have
been
a
ground
of
the
Court
of
Appeal’s
judgment.
Indeed,
in
the
passage
which
I
have
quoted,
Porter,
CJO
treats
a
requirement
to
act
judicially
as
being
relevant.
Since
the
power
was
conferred
on
a
judge
I
would
think,
with
respect,
that
the
duty
to
act
judicially
must
have
existed,
even
if
the
judge
was
acting
as
a
persona
designata.
On
the
basis
of
the
foregoing,
I
consider
the
form
of
the
authorization
before
us
to
be
proper.
Further,
it
cannot
be
said
that
there
was
no
evidence
capable
of
supporting
its
approval
by
the
judge.
The
affidavit
sufficiently
covered
the
matters
of
reasonable
and
probable
grounds
of
belief
that
a
violation
of
the
Act
had
been
committed
and
furnished
reasons
justifying
the
inclusion
of
the
premises
in
question
in
the
authorization.
Accordingly,
I
see
no
grounds
for
quashing
the
approval
of
Judge
Zalev.
The
matter
of
solicitor-client
privilege
was
not
considered
by
Morand,
J,
nor
dealt
with
in
argument
before
us,
and
neither
was
the
question
of
whether
all
the
documents
seized
were
in
fact
within
the
terms
of
the
authorization.
For
the
foregoing
reasons
I
would
allow
the
Minister’s
appeal,
set
aside
the
order
of
Morand,
J
and
dismiss
the
application
to
set
aside,
or
quash,
Judge
Zalev’s
approval.
I
would
also
dismiss
the
cross-appeal.