This
appeal
was
heard
concurrently
with
Kourtessis
v.
M.N.R.
(unreported),
S.C.C.,
No.
21654.
Both
appeals
address
the
validity
of
search
warrants
issued
and
executed
under
section
231.3
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
In
each
case
the
persons
subjected
to
search
and
seizure
applied
in
court
to
have
the
searches
and
seizures
invalidated
and
set
aside,
and
the
things
seized
returned,
on
the
ground
that
section
231.3
of
the
Act
violates
sections
7
and
8
of
the
Canadian
Charter
of
Rights
and
Freedoms
and
that
consequently,
the
section
and
the
impugned
warrants,
searches
and
seizures
are
of
no
force
or
effect.
Kourtessis
also
raises
an
additional
issue
as
to
the
jurisdiction
of
the
Court
of
Appeal
and
of
this
Court
to
hear
the
appeal.
Judgment
in
that
appeal
will
be
released
in
due
course.
The
nub
of
this
appeal
is
the
Act's
limitation
of
the
judicial
discretion
of
the
issuing
judge
by
use
of
the
word
"shall"
in
subsection
231.3(3).
I
conclude,
for
reasons
I
will
state
below,
that
section
231.3
of
the
Act
violates
section
8
of
the
Charter
in
so
far
as
it
removes
the
residual
discretion
of
the
issuing
judge
to
refuse
to
issue
a
search
warrant
in
the
proper
circumstances,
notwithstanding
that
the
statutory
criteria
for
its
issuance
have
been
met.
By
reason
of
this
violation
and
pursuant
to
subsection
52(1)
of
the
Constitution
Act,
1982,
section
231.3
is
of
no
force
or
effect
and
the
search
warrants
issued
and
executed
thereunder
against
the
respondents
are
also
invalid
and
of
no
force
or
effect.
In
my
view,
the
appeal
can
be
disposed
of
entirely
on
the
basis
of
section
8
of
the
Charter.
It
is
therefore
not
necessary
to
consider
the
respondents’
argument
that
section
7
was
also
violated.
Nor
do
I
propose
to
consider
separately
the
question
of
whether
the
impugned
section
improperly
interferes
with
judicial
independence.
In
my
view,
this
is
merely
another
ground
which
supports
my
conclusion
with
respect
to
the
importance
of
a
residual
judicial
discretion.
Neither
the
parties
nor
the
interveners
have
made
arguments
or
referred
to
any
evidence
either
in
this
appeal
or
in
Kourtessis
in
relation
to
section
1
of
the
Charter
or
capable
of
demonstrating
that
the
violation
of
section
8
is
justified
within
the
meaning
of
section
1.
It
will
therefore
not
be
necessary
to
consider
whether
this
legislation
permitting
unreasonable
searches
can
be
demonstrably
justified
as
a
reasonable
limit
on
the
right
to
be
secure
against
unreasonable
searches.
II.
The
facts
After
an
investigation,
Revenue
Canada
officers
formed
the
opinion
that
certain
documents
belonging
to
the
respondents
Berl
and
Howard
Baron
could
afford
evidence
of
the
commission
of
various
alleged
offences
under
the
Act.
The
allegation
was
that
Xentec
Laboratories
Inc.
had
made
false
or
deceptive
entries
in
its
books
of
account
and
evaded
or
attempted
to
evade
compliance
with
the
Act,
in
violation
of
paragraphs
239(1)(c)
and
(d).
On
August
7,
1986,
Strayer,
J.
of
the
Federal
Court-Trial
Division,
issued
warrants
to
search
the
Barons’
residences
and
business
premises
(the
law
firm
Baron
and
Abrams,
and
the
accounting
firm
Baron,
Merton).
The
warrants
were
executed
and
a
large
number
of
documents
were
seized.
On
June
21,
1989
Berl
and
Howard
Baron
brought
three
motions
and
instituted
an
action
in
the
Federal
Court,
Trial
Division.
The
motions
sought
orders:
(a)
setting
aside
the
search
warrants;
(b)
declaring
section
231.3
of
the
Act
of
no
force
or
effect
pursuant
to
section
52
of
the
Constitution
Act,
1982,
because
it
is
inconsistent
with
sections
7,
8
and
15
of
the
Charter;
(c)
ordering
the
return
to
the
Barons
of
all
the
items
seized
and
extracts
or
copies
thereof;
(d)
ordering
the
return
of
all
summaries,
notes
or
diagrams
taken
from
the
items
seized;
(e)
prohibiting
the
Department
from
using
the
items
or
summaries,
notes,
diagrams
or
information
taken
thereof;
and
(f)
ordering
the
destruction
of
all
summaries,
copies,
notes
or
diagrams
not
returned
to
the
Barons.
The
ground
for
the
motions
was
that
the
searches
and
seizures
were
unreasonable
because
section
231.3
of
the
Act
is
inconsistent
with
sections
7,
8
and
15
of
the
Charter
and
consequently
is
of
no
force
or
effect.
The
relief
requested
in
the
action
instituted
at
the
same
time
as
the
motions
was
to
the
same
effect.
The
Barons
sought
a
declaration
that
section
231.3
of
the
Act
was
inconsistent
with
sections
7,
8
and
15
of
the
Charter
and
of
no
force
or
effect,
and
that
the
warrants
and
searches
and
seizures
which
followed
were
unreasonable
and
consequently
of
no
force
or
effect.
They
also
sought
an
order
compelling
the
return,
non-use
or
destruction
of
items
seized
and
copies
and
summaries
thereof
corresponding
to
paragraphs
(c)
through
(f)
of
the
relief
sought
in
the
motions,
above.
As
the
trial
judge,
Reed,
J.,
summarized,
[1990]
1
C.T.C.
84,
90
D.T.C.
6040
at
page
86
(D.T.C.
6041),
the
respondents
contended
that
the
search
and
seizure
provisions
in
section
231.3
were
invalid
because:
(1)
subsection
231.3(3)
allows
no
discretion
to
a
judge
to
guard
against
abusive
searches
and
seizures
—
it
requires
a
judge
to
issue
a
warrant
if
satisfied
that
there
are
reasonable
grounds
to
believe
that
an
offence
has
been
committed
and
that
evidence
of
that
offence
is
likely
to
be
found
in
certain
premises;
(2)
subsection
231.3(5)
allows
wholesale
searches
and
seizures,
without
adequate
authorization,
and
therefore
does
not
meet
the
requirements
of
a
constitutionally
valid
search
and
seizure
power,
as
set
out
in
Hunter
v.
Southam
Inc.,
[1984]
2
S.C.R.
145,
84
D.T.C.
6467,
11
D.L.R.
(4th)
641,
27
B.L.R.
297;
.
.
.
(3)
the
requirements
under
subsection
231.3(3)
do
not
meet
the
requirements
of
Hunter
v.
Southam,
supra,
because
they
only
require
that
there
be
reasonable
grounds
to
believe
that
an
offence
has
been
committed—this
is
a
lesser
test
than
one
requiring
that
there
be
"reasonable
and
probable”
grounds;
(4)
the
provisions
of
section
231.3
offend
section
15
of
the
Canadian
Charter
of
Rights
and
Freedoms
.
.
.
because
there
are
two
avenues
by
which
warrants
can
be
obtained
.
.
.
and
the
appeal
provisions
differ
depending
on
which
route
is
chosen.
.
.
.
[Emphasis
in
original.]
The
respondents
also
attacked
some
of
the
warrants
on
the
basis
that
they
did
not
contain
a
clause
protecting
documents
which
were
subject
to
solicitorclient
privilege
or
which
arose
in
the
course
of
an
accountant-client
confidential
relationship.
The
motions
and
action
for
a
declaration
were
dismissed
with
a
single
set
of
reasons
by
Reed,
J.
These
judgments
were
appealed
to
the
Federal
Court
of
Appeal,
which
allowed
all
four
appeals:
Baron
v.
Canada,
[1991]
1
C.T.C.
125,
91
D.T.C.
5055
(supplementary
reasons
at
[1991]
1
C.T.C.
408,
91
D.T.C.
5134).
Hugessen,
J.A.
(for
the
Court)
dealt
with
all
four
appeals
together
as
they
raised
identical
issues.
He
held
that
section
231.3
violated
sections
7
and
8
of
the
Charter
and
was
consequently
of
no
force
or
effect,
and
quashed
the
search
warrants.
With
the
consent
of
the
Barons,
the
Minister
sought
to
appeal
only
one
of
the
Court
of
Appeal's
judgments
to
this
Court.
Leave
to
appeal
to
this
Court
was
granted
on
May
16,
1991
at
which
time
it
was
ordered
that
Baron
be
heard
on
the
same
day
as
Kourtessis.
III.
The
issues
On
June
20,
1991,
the
Chief
Justice
stated
the
following
constitutional
question
for
the
consideration
of
the
Court:
Whether
section
231.3
of
the
Income
Tax
Act,
S.C.
1970-71-72,
c.
63,
as
amended
by
S.C.
1986,
c.
6,
limits
the
rights
and
freedoms
guaranteed
by
sections
7
and
8
of
the
Canadian
Charter
of
Rights
and
Freedoms,
Part
I
of
the
Constitution
Act,
1982,
being
Schedule
B
of
the
Canada
Act,
1982,
(U.K.),
1982,
c.
11,
and
is
consequently
of
no
force
or
effect
pursuant
to
section
52
of
the
Constitution
Act,
1982,
Schedule
B,
Canada
Act,
1982,
c.
11
(U.K.).
It
is
to
be
noted
that
only
sections
7
and
8
of
the
Charter
are
invoked
before
this
Court.
The
argument
based
on
the
section
15
equality
guarantee
has
been
abandoned
as
a
basis
on
which
to
attack
section
231.3
and
the
warrants.
Section
231.3
is
alleged
to
infringe
sections
7
and
8
of
the
Charter
in
the
following
respects:
1.
subsection
(3)
is
invalid
in
that
it
removes
from
the
authorizing
judge
a
residual
discretion;
2.
subsection
3
is
invalid
in
that
reasonable
grounds"
fails
to
meet
the
minimum
constitutional
standard
of
"reasonable
and
probable
grounds";
3.
paragraph
(3)(b)
is
invalid
in
that
the
words
"may
afford
evidence"
fail
to
meet
the
minimum
constitutional
standard
for
the
discovery
of
evidence;
4.
subsection
(5)
is
invalid
in
that
it
authorizes
a
wholesale
search
and
seizure.
IV.
Pertinent
legislation
A.
Income
Tax
Act,
S.C.
1970-71-72,
c.
63,
as
amended
by
S.C.
1986,
c.
6,
s.
121.
The
provision
under
which
the
search
warrants
in
both
cases
were
sought
and
issued
and
which
forms
the
centrepiece
of
the
present
litigation
is
section
231.3
of
the
Act,
which
I
reproduce
here
in
its
entirety.
231.3
(1)
A
judge
may,
on
ex
parte
application
by
the
Minister,
issue
a
warrant
in
writing
authorizing
any
person
named
therein
to
enter
and
search
any
building,
receptacle
or
place
for
any
document
or
thing
that
may
afford
evidence
as
to
the
commission
of
an
offence
under
this
Act
and
to
seize
and,
as
soon
as
practicable,
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
(2)
An
application
under
subsection
(1)
shall
be
supported
by
information
on
oath
establishing
the
facts
on
which
the
application
is
based.
(3)
A
judge
shall
issue
the
warrant
referred
to
in
subsection
(1)
where
he
is
satisfied
that
there
are
reasonable
grounds
to
believe
that
(a)
an
offence
under
this
Act
has
been
committed;
(b)
a
document
or
thing
that
may
afford
evidence
of
the
commission
of
the
offence
is
likely
to
be
found;
and
(c)
the
building,
receptacle
or
place
specified
in
the
application
is
likely
to
contain
such
a
document
or
thing.
(4)
A
warrant
issued
under
subsection
(1)
shall
refer
to
the
offence
for
which
it
is
issued,
identify
the
building,
receptacle
or
place
to
be
searched
and
the
person
alleged
to
have
committed
the
offence
and
it
shall
be
reasonably
specific
as
to
any
document
or
thing
to
be
searched
for
and
seized.
(5)
Any
person
who
executes
a
warrant
under
subsection
(1)
may
seize,
in
addition
to
the
document
or
thing
referred
to
in
subsection
(1),
any
other
document
or
thing
that
he
believes
on
reasonable
grounds
affords
evidence
of
the
commission
of
an
offence
under
this
Act
and
shall
as
soon
as
practicable
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
who
issued
the
warrant
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
(6)
Subject
to
subsection
(7),
where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
shall,
unless
the
Minister
waives
retention,
order
that
it
be
retained
by
the
Minister,
who
shall
take
reasonable
care
to
ensure
that
it
is
preserved
until
the
conclusion
of
any
investigation
into
the
offence
in
relation
to
which
the
document
or
thing
was
seized
or
until
it
is
required
to
be
produced
for
the
purposes
of
a
criminal
proceeding.
(7)
Where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
may,
of
his
own
motion
or
on
summary
application
by
a
person
with
an
interest
in
the
document
or
thing
on
three
clear
days
notice
of
application
to
the
Deputy
Attorney
General
of
Canada,
order
that
the
document
or
thing
be
returned
to
the
person
from
whom
it
was
seized
or
the
person
who
is
otherwise
legally
entitled
thereto
if
the
judge
is
satisfied
that
the
document
or
thing
(a)
will
not
be
required
for
an
investigation
or
a
criminal
proceeding;
or
(b)
was
not
seized
in
accordance
with
the
warrant
or
this
section.
(8)
The
person
from
whom
any
document
or
thing
is
seized
pursuant
to
this
section
is
entitled,
at
all
reasonable
times
and
subject
to
such
reasonable
conditions
as
may
be
imposed
by
the
Minister,
to
inspect
the
document
or
thing
and
to
obtain
one
copy
of
the
document
at
the
expense
of
the
Minister.
B.
Canadian
Charter
of
Rights
and
Freedoms
8.
Everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure.
V.
Judgments
below
A.
Federal
Court-Trial
Division
(Reed,
J.)
Reed,
J.
dealt
with
each
of
the
respondents'
attacks
on
section
231.3
in
turn.
First
came
the
issue
of
judicial
discretion.
She
felt
bound
by
the
Federal
Court
of
Appeal's
decision
in
Solvent
Petroleum
Extraction
Inc.
v.
M.N.R.,
[1989]
2
C.T.C.
177,
89
D.T.C.
5381
(F.C.A.),
aff’g
[1988]
1
C.T.C.
325,
88
D.T.C.
6224
(F.C.T.D.),
leave
to
appeal
refused,
[1989]
2
S.C.R.
xi
[hereinafter
Solvent
Petroleum],
in
which
Desjardins,
J.A.
(Pratte
and
Stone,
JJ.A.,
concurring)
said,
at
page
179
(D.T.C.
5382-83),
that
if
the
statutory
conditions
are
met,
the
issuing
judge
must
issue
the
warrant.
Reed,
J.
then
cited
other
decisions
and
authorities
on
the
interpretation
of
the
word”
shall”,
some
holding
it
to
be
mandatory,
others
holding
it
to
have
been
a
slip
by
the
legislature,
which
had
intended
to
say
"may".
She
then
reproduced
a
long
excerpt
from
the
British
Columbia
Court
of
Appeal's
reasons
in
Kourtessis
v.
M.N.R.,
[1990]
1
C.T.C.
241,
89
D.T.C.
5464,
in
which
Locke,
J.A.
concluded
that
while
subsection
231.3(3)
deprives
the
issuing
judge
of
the
discretion
to
refuse
a
warrant
once
the
statutory
criteria
are
met,
it
preserves
the
judge's
crucial
“balance
wheel”
function
of
deciding
whether
the
facts
before
him
or
her
are
sufficient
to
warrant
an
intrusion
of
privacy,
and
thus
does
not
defeat
the
standards
of
Hunter,
supra.
In
any
event,
Locke,
J.A.
held,
the
judge
may
attach
conditions
to
the
execution
of
the
warrant.
Reed,
J.
thought
that
perhaps
section
2
of
the
Canadian
Bill
of
Rights,
R.S.C.,
1985,
App.
Ill,
or
the
court's
inherent
control
over
the
abuse
of
its
own
process,
might
allow
an
issuing
judge
to
refuse
to
issue
an
abusive
warrant.
She
agreed
that
certainly
the
issuing
judge
could
attach
conditions
to
the
warrant.
But
ultimately
she
declined
to
decide
the
question
of
whether
subsection
231.3(3)
removed
the
issuing
judge's
discretion
to
refuse
to
issue
a
warrant
where
to
do
so
would
be
abusive,
since
in
her
view
no
abusive
search
or
seizure
in
violation
of
section
8
of
the
Charter
had
occurred
in
this
case
and
there
was
no
factual
underpinning
for
the
argument
(at
pages
92-93
(D.T.C.
6045)).
Then
came
the
issue
of
wholesale
search
and
seizure
under
subsection
231.3(5).
Reed,
J.
referred
to
the
general
requirement
of
prior
authorization
enunciated
in
Hunter,
supra,
and
the
Federal
Court
of
Appeal's
judgment
in
M.N.R.
v.
Kruger
Inc.,
[1984]
C.T.C.
506,
84
D.T.C.
6478,
striking
down
as
too
wide
and
general
the
search
power
in
section
231.3's
predecessor
(subsection
231(4)),
which
allowed
the
seizure
of
anything
that
may
afford
evidence
of
the
violation
of
any
provision
of
the
Act
or
a
regulation).
She
then
quoted
extensively
from
Solvent
Petroleum,
supra,
in
which
the
Federal
Court
of
Appeal
held
that
the
“plain
view"
seizure
permitted
by
the
Act
met
the
test
of
reasonableness
and
therefore
of
validity.
Reed,
J.
held
that
decision
to
be
binding
on
her.
The
next
issue
was
whether
it
was
sufficient
to
require
only
"reasonable
grounds
to
believe”
(subsection
231.3(3))
instead
of
reasonable
and
probable
grounds".
Reed,
J.
referred
extensively
to
the
British
Columbia
Court
of
Appeal's
decision
in
Kourtessis,
supra,
which
held
that
“reasonable”
in
the
context
of
subsection
231.3(3)
satisfied
the
more-probable-than-not
test”
required
by
Hunter,
supra.
She
then
referred
to
R.
v.
Simmons,
[1988]
2
S.C.R.
495,
55
D.L.R.
(4th)
673,
38
C.R.R.
252,
at
page
523
(D.L.R.
695,
C.R.R.
272),
which
stated
the
Hunter
test
to
be
reasonable
and
probable
grounds",
and
juxtaposed
that
with
the
conclusion
reached
in
Solvent
Petroleum,
supra,
(adopting
Lysyk,
J.'s
conclusion
in
Kourtessis,
supra)
that
the
absence
of
a
statutory
requirement
for
probable
as
well
as
reasonable
grounds
for
belief
was
not
constitutionally
fatal
since
the
only
explicit
requirement
in
section
8
is
that
of
reasonableness
which
comprehended
a
requirement
of
probability.
Reed,
J.
then
went
on
to
reject
the
respondents'
section
15
argument
and
their
arguments
based
on
solicitor-client
or
accountant-client
privilege.
She
dismissed
the
application
with
one
set
of
costs.
B.
Federal
Court
of
Appeal
(Hugessen,
J.A.,
Pratte
and
Marceau,
JJ.A.,
concurring)
Hugessen,
J.A.
wrote
the
reasons
for
the
Court's
decision.
He
started
by
considering
the
characterization
of
the
search
and
seizure
provisions
of
the
Act
for
the
purposes
of
determining
the
taxpayer's
reasonable
expectation
of
privacy
under
section
8
of
the
Charter.
He
rejected
the
contention
that
the
procedures
constituted
an
administrative
enforcement
mechanism
as
described
in
R.
v.
McKinlay
Transport
Ltd.,
[1990]
1
S.C.R.
627,
[1990]
2
C.T.C.
103,
90
D.T.C.
6243,
holding
instead
that
they
were
concerned
with
the
detection
and
prosecution
of
crime.
No
easing
of
Charter
standards
was
therefore
justified;
on
the
contrary,
“nothing
less
than
the
full
panoply
of
Charter
protection
is
appropriate"
(at
page
129
(D.T.C.
5058)).
Hugessen,
J.A.
then
broached
the
substantive
issues.
On
the
first
question
of
judicial
discretion
and
the
use
of
the
words
"shall
issue”
in
subsection
231.3(3),
he
held
that
any
text
which
specifically
excludes
the
residual
discretion
to
refuse
to
issue
a
warrant
where
the
circumstances
do
not
justify
an
invasion
of
privacy
“will,
for
that
reason
alone,
run
afoul
of
sections
7
and
8
of
the
Charter
as
authorizing
an
unreasonable
search
and
seizure
and
one
that
is
in
breach
of
the
principles
of
fundamental
justice”
(at
page
129
(D.T.C.
5058)).
He
rejected
the
trial
judge's
suggestion
that
subsection
231.3(3)
could
be
"read
down”
to
preserve
a
residual
discretion
and
held
that
the
context
of
section
231.3
and
the
fact
that
the
section's
use
of
"shall"
is
unique
in
Canadian
search
warrant
legislation
show
that
the
word
was
intended
to
be
mandatory
and
imperative.
He
referred
to
but
rejected
the
British
Columbia
Court
of
Appeal's
holding
in
Kourtessis,
supra,
that
the
judge’s
discretion
to
determine
whether
the
statutory
criteria
are
met
satisfies
the
Hunter
standard
and
that
in
any
event
the
issuing
judge
may
attach
conditions
to
the
warrant.
He
placed
considerable
emphasis
on
this
Court's
decision
in
Descôteaux
v.
Mierzwinski,
[1982]
1S.C.R.
860,
141
D.L.R.
(3d)
590,
70
C.C.C.
(2d)
385,
deriving
from
that
case
the
proposition
that
the
existence
of
judicial
discretion
is
a
prerequisite
to
the
reasonableness
of
a
search
and
to
our
notions
of
fundamental
justice.
Moreover,
in
his
view,
Descôteaux
establishes
that
any
legislative
attempt
to
define
exhaustively
when
a
search
will
be
reasonable
is
impossible.
He
concluded
that
the
ultimate
protection
for
the
citizen
against
unreasonable
searches
resides
in
the
power
to
refuse
to
issue
a
warrant
even
when
all
the
conditions
prescribed
by
Parliament
are
met.
Hugessen,
J.A.
went
on
to
consider
the
other
grounds
of
appeal.
He
cited,
inter
alia,
Dickson,
J.'s
(as
he
then
was)
statement
in
Hunter,
supra,
at
page
167,
that
the
standards
in
section
443
of
the
Criminal
Code,
R.S.C.
1970,
c.
C-34,
(“reasonable
ground")
and
the
U.S.
fourth
amendment
("probable
cause")
are
identical.
From
this
he
held
at
page
137
(D.T.C.
5064)
that
the
words
reasonable
grounds"
in
subsection
231.3(3)
met
the"
more
likely
than
not”
standard
of
probability
required
for
a
search
to
be
reasonable.
Next,
he
held
at
page
137
(D.T.C.
5064)
that
paragraph
231.3(3)(b)
did
not
pass
constitutional
muster,
since
by
using
the
words
"may
afford
evidence"
it
failed
to
meet
the
standard
of
Hunter,
supra,
that
there
be
reasonable
grounds
to
believe
that
evidence
will
be
found.
Finally,
he
held
that
there
was
no
reason
to
interfere
with
the
court's
previous
holding
in
Solvent
Petroleum,
supra,
that
subsection
231.3(5)
does
not
authorize
unreasonable
"wholesale"
searches
and
seizures.
As
a
result,
the
appeals
were
allowed,
section
231.3
was
declared
of
no
force
or
effect
and
the
search
warrants
were
quashed.
VI.
Analysis:
the
constitutional
validity
of
section
231.3
A.
Legislative
History
Section
231.3
was
enacted
by
Parliament
in
1986
in
response
to
a
number
of
appellate
court
decisions
finding
that
the
previous
search
warrant
provisions
of
the
Act
violate
section
8
of
the
Charter.
The
predecessor
to
section
231.3
read
as
follows:
231
(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.
In
Kruger,
supra,
subsection
231(4)
was
held
to
contravene
section
8
of
the
Charter
in
that
it
gave
the
Minister,
when
he
or
she
believed
one
offence
to
have
been
committed,
the
power
to
authorize
a
general
search
and
seizure
relating
to
the
violation
of
any
of
the
provisions
of
the
Act
or
its
regulations.
The
Ontario
Court
of
Appeal
agreed
with
this
holding
in
Print
Three
Inc.
v.
The
Queen,
[1985]
2
C.T.C.
48,
85
D.T.C.
5303,
20
C.C.C.
(3d)
392,
leave
to
appeal
refused
[1985]
2
S.C.R.
x,
53
O.R.
(2d)
319,
18
C.R.R.
192n,
and
found
additional
reasons
that
the
section
violated
section
8
(at
page
50
(D.T.C.
5305,
C.C.C.
396)):
In
our
view,
there
are
additional
reasons
to
those
relied
upon
by
the
Federal
Court
of
Appeal
for
holding
the
subsection
to
be
in
breach
of
section
8.
It
is
clear
that
to
meet
the
standards
of
reasonableness
there
must
first
be
an
independent
arbiter
(judge)
who
is
satisfied
that
there
are
reasonable
grounds
for
believing
that
an
offence
has
been
committed
(see
Hunter
v.
Southam
Inc.,
supra).
In
subsection
231(4)
and
(5),
it
is
the
Minister
who
has
to
have
the
reasonable
and
probable
grounds
and
there
is
no
standard
or
conditions
precedent
set
out
for
the
judge
on
which
to
base
his
assessment
of
whether
the
Minister's
belief
is
properly
founded.
Mr.
Kelly
argued
that
the
only
reasonable
construction
of
subsection
(5)
is
that
facts
must
be
laid
before
the
judge
so
he
can
be
satisfied
that
the
Minister
has
reasonable
and
probable
grounds.
Even
if
the
subsection
could
be
so
construed,
there
are,
as
we
have
noted,
additional
flaws
in
subsection
231(4)
and
(5).
There
is
no
requirement
that
the
Minister
have
grounds
to
believe
that
evidence
is
likely
to
be
found
at
the
place
of
the
search
and
there
is
no
requirement
that
he
present
such
grounds
to
the
judge.
There
is,
equally,
no
direction
as
to
what
is
to
be
issued
by
the
judge
in
granting
his
"approval".
It
is
the
Minister
who
issues
what
is,
in
essence,
the
warrant.
Finally,
the
Minister
is
not
required
in
the
authorization
to
specify
the
things
to
be
searched
for.
The
new
version
addresses
these
defects.
Subsection
231.3(3)
now
makes
it
clear
that
prior
to
the
issuance
of
a
search
warrant
under
the
Act
a
judge
must
be
satisfied
that
there
are
reasonable
grounds
to
believe
that
a
particular
offence
has
been
committed
under
the
Act
and
that
a
document
or
thing
that
may
afford
evidence
of
the
commission
of
that
offence
is
likely
to
be
found
in
the
building,
receptacle
or
place
specified
in
the
application.
Moreover,
subsection
231.3(4)
requires
particulars
to
be
stated
within
the
warrant
as
to
what
may
be
searched
for
and
seized.
The
constitutionality
of
section
231.3
of
the
Act
has
been
considered
in
a
number
of
lower
court
and
appellate
court
decisions.
The
majority
of
these
have
upheld
section
231.3:
see
for
example
Kohli
v.
Moase
(1987),
86
N.B.R.
(2d)
15,
219
A.P.R.
15
(Q.B.),
aff'd
on
other
grounds,
[1989]
1
C.T.C.
49,
89
D.T.C.
5336
(N.B.C.A.);
Solvent
Petroleum,
supra;
and
Kourtessis,
supra.
In
my
view,
however,
the
amended
legislation
is
still
inadequate.
B.
Applying
section
8
of
the
Charter
(1)
Denial
of
Residual
Discretion:
Subsection
(3)
This
issue
requires
a
decision
as
to
whether
legislation
which
authorizes
a
search
or
seizure
must
provide
for
a
residual
discretion
in
the
judicial
officer
who
issues
the
warrant.
It
is
contended
by
the
respondents
and
the
Federal
Court
of
Appeal
so
held
that
legislation
that
fails
to
do
so
violates
section
8
of
the
Charter.
Reliance
is
placed
on
this
Court's
decision
in
Hunter,
supra,
and
cases
that
have
followed
it.
The
appellants
contend
that
this
was
not
one
of
the
conditions
laid
down
by
Hunter,
that
if
it
was
it
does
not
apply
here
and
in
any
event
the
impugned
section
does
provide
a
discretion
that
satisfies
the
dictates
of
section
8.
in
my
view,
an
analysis
of
the
principles
on
which
Hunter
was
based
shows
that
the
exercise
of
a
judicial
discretion
in
the
decision
to
grant
or
withhold
authorization
for
a
warrant
of
search
was
fundamental
to
the
scheme
of
prior
authorization
which
Dickson,
J.
prescribed
as
an
indispensable
requirement
for
compliance
with
section
8
in
that
case.
The
judgment
makes
very
clear
that
the
decision
to
grant
or
withhold
the
warrant
requires
the
balancing
of
two
interests:
that
of
the
individual
to
be
free
of
intrusions
of
the
state
and
that
of
the
state
to
intrude
on
the
privacy
of
the
individual
for
the
purpose
of
law
enforcement.
At
pages
158-60
(D.T.C.
6473-74,
D.L.R.
651-52,
B.L.R.
309-10)
of
the
judgment,
Dickson,
J.
stated:
In
my
view
the
interests
protected
by
section
8
are
of
a
wider
ambit
than
those
enunciated
in
Entick
v.
Carrington
(1765),
19
St.
Tr.
1029,
1
Wils.
K.B.
275.
Section
8
is
an
entrenched
constitutional
provision.
It
is
not
therefore
vulnerable
to
encroachment
by
legislative
enactments
in
the
same
way
as
common
law
protections.
There
is,
further,
nothing
in
the
language
of
the
section
to
restrict
it
to
the
protection
of
property
or
to
associate
it
with
the
law
of
trespass.
It
guarantees
a
broad
and
general
right
to
be
secure
from
unreasonable
search
and
seizure.
Like
the
Supreme
Court
of
the
United
States,
I
would
be
wary
of
foreclosing
the
possibility
that
the
right
to
be
secure
against
unreasonable
search
and
seizure
might
protect
interests
beyond
the
right
of
privacy,
but
for
purposes
of
the
present
appeal
I
am
satisfied
that
its
protections
go
at
least
that
far.
The
guarantee
of
security
from
unreasonable
search
and
seizure
only
protects
a
reasonable
expectation.
This
limitation
on
the
right
guaranteed
by
section
8,
whether
it
is
expressed
negatively
as
freedom
from“
unreasonable”
search
and
seizure,
or
positively
as
an
entitlement
to
a
"reasonable"
expectation
of
privacy,
indicates
that
an
assessment
must
be
made
as
to
whether
in
a
particular
situation
the
public’s
interest
in
being
left
alone
by
government
must
give
way
to
the
government's
interest
in
intruding
on
the
individual’s
privacy
in
order
to
advance
its
goals,
notably
those
of
law
enforcement.
[Emphasis
in
original.]
The
circumstances
in
which
these
conflicting
interests
must
be
balanced
Will
vary
greatly.
The
strength
of
the
interests
will
be
affected
by
matters
such
as
the
nature
of
the
offence
alleged,
the
nature
of
the
intrusion
sought
including
the
place
to
be
searched,
the
time
of
the
search
and
the
person
or
persons
who
are
the
subjects
of
the
search.
The
variability
of
the
factors
affecting
the
decision
of
the
authorizing
judge
was
stressed
by
Lamer,
J.
(as
he
then
was)
in
Descôteaux,
supra.
This
was
a
pre-Charter
case
in
which
this
Court
held
that
section
443
(now
section
487)
provided
for
a
discretion
when
a
warrant
is
sought
before
a
justice
under
the
Criminal
Code,
R.S.C.
1970,
c.
C-34.
At
page
889
(D.L.R.
615-16,
C.C.C.
410-11)
Lamer,
J.
said:
I
come
down
on
the
side
of
the
discretion,
as
it
allows
more
effective
judicial
control
of
the
police.
Searches
are
an
exception
to
the
oldest
and
most
fundamental
principles
of
the
common
law,
and
as
such
the
power
to
search
should
be
strictly
controlled.
It
goes
without
saying
that
the
justice
may
sometimes
be
in
a
poor
position
to
assess
the
need
for
the
search
in
advance.
After
all,
searches,
while
constituting
a
means
of
gathering
evidence,
are
also
an
investigative
tool.
It
will
often
be
difficult
to
determine
definitively
the
probative
value
of
a
particular
thing
before
the
police
investigation
has
been
completed.
Be
that
as
it
may,
there
are
places
for
which
authorization
to
search
should
generally
be
granted
only
with
reticence
and,
where
necessary,
with
more
conditions
attached
than
for
other
places.
One
does
not
enter
a
church
in
the
same
way
as
a
lion's
den,
or
a
warehouse
in
the
same
way
as
a
lawyer's
office.
One
does
not
search
the
premises
of
a
third
party
who
is
not
alleged
to
have
participated
in
the
commission
of
a
crime
in
the
same
way
as
those
of
someone
who
is
the
subject
of
such
an
allegation.
In
order
to
take
account
of
the
various
factors
affecting
the
balancing
of
the
two
interests,
the
authorizing
judge
must
be
empowered
to
consider
all
the
circumstances.
No
set
of
criteria
will
always
be
determinative
or
sufficient
to
override
the
right
of
the
individual
to
privacy.
It
is
imperative,
therefore,
that
a
sufficient
degree
of
flexibility
be
accorded
to
the
authorizing
officer
in
order
that
justice
be
done
to
the
respective
interests
involved.
In
Canadian
Broadcasting
Corp.
v.
Lessard,
[1991]
3
S.C.R.
421,
130
N.R.
321,
9
C.R.
(4th)
133,
and
Canadian
Broadcasting
Corp.
v.
New
Brunswick
(Attorney
General),
[1991]
3
S.C.R.
459,
130
N.R.
362,
9
C.R.
(4th)
192,
119
N.B.R.
(2d)
271,
this
Court
considered
the
factors
that
should
be
taken
into
consideration
by
a
justice
of
the
peace
when
determining
whether
to
issue
a
warrant
for
the
search
of
the
premises
of
a
media
organization
pursuant
to
section
487
of
the
Criminal
Code,
R.S.C.,
1985,
c.
C-46.
It
was
submitted
that
two
requirements
were
constitutionally
entrenched,
namely
that
the
Justice
of
the
Peace
must
be
satisfied
that
there
was
no
investigative
alternative
for
obtaining
the
material
and,
if
one
existed,
that
it
had
been
pursued.
In
the
course
of
rejecting
the
constitutional
entrenchment
of
these
two
requirements,
a
majority
of
this
Court
stressed
the
importance
of
evaluating
the
reasonableness
of
a
search
in
light
of
all
the
surrounding
factors.
Cory,
J.
stated
in
Canadian
Broadcasting
Corp.
v.
New
Brunswick
(Attorney
General),
supra,
at
page
475
(N.R.
378,
C.R.
206-07,
N.B.R.
789-90)
:
Any
search
of
premises
is
certain
to
be
disquieting
and
upsetting.
The
invasion
of
privacy
rights,
which
a
search
entails
is
an
important
concern
for
all
members
of
a
democratic
society.
Some
searches
are
obviously
more
intrusive
and
upsetting
than
others.
For
example,
the
search
of
a
residence
is
likely
to
have
graver
consequences
than
a
search
of
commercial
premises
which
may
be
subject
to
statutory
regulation
and
inspection.
Because
of
its
intrusive
nature,
a
warrant
to
search
any
premises
must
only
be
issued
when
a
justice
of
the
peace
is
satisfied
that
all
the
statutory
requirements
have
been
met.
In
those
situations
where
all
the
statutory
prerequisites
have
been
established,
the
justice
of
the
peace
should
still
consider
all
of
the
circumstances
in
determining
whether
to
exercise
his
or
her
discretion
to
issue
a
warrant.
It
is
not
a
step
that
can
be
taken
lightly.
This
is
particularly
true
when
a
warrant
is
sought
to
search
the
offices
of
a
news
media
organization,
where
the
consequences
are
likely
to
be
disruptive
of
the
media's
role
of
gathering
and
publishing
news.
[Emphasis
added.]
Moreover,
in
response
to
the
argument
that
these
two
requirements
are
constitutionally
entrenched
prerequisites
to
the
search
of
media
offices,
Cory,
J.
commented
at
page
478
(N.R.
382-83,
C.R.
209,
N.B.R.
293-94):
In
my
view,
the
assessment
of
the
reasonableness
of
a
search
cannot
be
said
to
rest
only
upon
these
two
factors.
Rather
all
factors
should
be
evaluated
in
light
of
the
particular
factual
situation
presented.
The
factors
which
may
be
vital
in
assessing
the
reasonableness
of
one
search
may
be
irrelevant
in
another.
Simply
stated,
it
is
impossible
to
isolate
two
factors
from
the
numerous
considerations
which
bear
on
assessment
of
the
reasonableness
of
a
search
and
label
them
as
conditional
prerequisites.
The
essential
question
can
be
put
in
this
way:
taking
into
account
all
the
circumstances
and
viewing
them
fairly
and
objectively
can
it
be
said
that
the
search
was
a
reasonable
one?
It
is
the
overall
reasonableness
of
a
search
which
is
protected
by
section
8
of
the
Charter.
Certainly
the
potentially
damaging
effect
of
a
search
and
seizure
upon
the
freedom
and
the
functioning
of
the
press
is
highly
relevant
to
the
assessment
of
the
reasonableness
of
the
search.
Yet
neither
subsection
2(b)
nor
section
8
of
the
Charter
requires
that
the
two
factors
set
out
in
Pacific
Press
[Re
Pacific
Press
Ltd.
v.
The
Queen
(1977),
37
C.C.C.
(2d)
487
(B.C.S.C.)]
must
always
be
met
in
order
for
a
search
to
be
permissible
and
constitutionally
valid.
It
is
essential
that
flexibility
in
the
balancing
process
be
preserved
so
that
all
the
factors
relevant
to
the
individual
case
may
be
taken
into
consideration
and
properly
weighed.
[Emphasis
added.]
In
some
situations
this
discretion
will
only
be
exercised
subject
to
specified
conditions
being
met
and
subject
to
restrictions
and
conditions
with
respect
to
the
execution
of
the
warrant
that
are
specified
in
the
authorization.
This
would
apply,
for
example,
in
the
case
of
the
prospective
search
of
a
private
dwelling.
I
referred
to
this
in
R.
v.
Thompson,
[1990]
2
S.C.R.
1111,
73
D.L.R.
(4th)
596,
[1990]
6
W.W.R.
481,
in
connection
with
authorizations
to
wiretap
in
a
dwelling.
The
authorizing
judge
must
consider
imposing
conditions.
The
importance
of
the
power
to
impose
conditions
and
restrictions
was
emphasized
by
Lamer,
J.
in
Descôteaux,
supra,
at
page
891,
D.L.R.
617,
C.C.C.
412,
the
exercise
of
which
was
dependent
on
the
existence
of
a
residual
discretion.
Not
only
is
the
existence
of
a
discretion
indispensable
to
the
balancing
of
interests
which
Hunter
envisaged
but
the
requirement
that
the
officer
authori-
zing
the
seizure
be
independent
and
capable
of
acting
judicially
is
inconsistent
with
the
notion
that
the
state
can
dictate
to
him
or
her
the
precise
circumstances
under
which
the
right
of
the
individual
can
be
overborne.
I
agree
with
the
statement
of
Morden,
J.A.
in
M.N.R.
v.
Paroian,
[1980]
C.T.C.
131,
80
D.T.C.
6077
(Ont.
C.A.),
at
page
138
(D.T.C.
6083)
that
"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."
This
statement
was
quoted
with
approval
in
Selye
v.
Quebec,
[1982]
R.D.F.Q.
173,
at
page
176.
This
statement,
which
was
made
in
a
pre-Charter
case,
would
apply
with
greater
force
in
the
era
of
the
Charter.
The
concept
of
a
rubber
stamp
role
would
be
completely
inconsistent
with
the
role
assigned
to
the
judiciary
as
expressed
by
Dickson,
J.
in
Beauregard
v.
The
Queen,
[1986]
2
S.C.R.
56,
30
D.L.R.
(4th)
481,
26
C.R.R.
59,
at
page
72
(D.L.R.
493,
C.R.R.
70):
Secondly,
the
enactment
of
the
Canadian
Charter
of
Rights
and
Freedoms
(although
admittedly
not
relevant
to
this
case
because
of
its
date
of
origin)
conferred
on
the
courts
another
truly
crucial
role:
the
defense
of
basic
individual
liberties
and
human
rights
against
intrusions
by
all
levels
and
branches
of
government.
Once
again,
in
order
to
play
this
deeply
constitutional
role,
judicial
independence
is
essential.
Having
found
that
a
residual
discretion
is
a
constitutional
requirement,
the
next
question
is
whether
subsection
231.3(3)
removes
or
impermissibly
restricts
this
discretion.
It
is
clear
to
me
that
the
answer
is
yes.
I
would
adopt
the
reasoning
of
the
Federal
Court
of
Appeal
on
this
point,
in
preference
to
that
of
the
British
Columbia
Court
of
Appeal
in
Kourtessis,
supra.
Subsection
231.3(1)
states
that,
on
an
ex
parte
application,
a
judge
"may"
issue
a
warrant
for
the
search
of
premises.
However,
subsection
231.3(3)
provides
that
a
judge
"shall"
issue
the
warrant
once
satisfied
that
the
three
statutory
conditions
set
out
therein
have
been
satisfied.
As
Hugessen,
J.A.
pointed
out,
the
word
"shall"
is
normally
to
be
construed
as
imperative.
This
rule
of
construction
is
embodied
in
section
11
of
the
Interpretation
Act,
R.S.C.,
1985,
c.
1-21.
The
plain
effect
of
the
use
of
the
word
in
subsection
231.3(3)
is
as
the
Federal
Court
of
Appeal
held
in
Solvent
Petroleum,
supra,
at
page
179
(D.T.C.
5382-83),
excerpted
in
Baron,
pages
129-30
(D.T.C.
5059)
Subsection
231.3(1)
states
that
"A
judge
may”.
Subsection
231.3(3)
states
that
"A
judge
shall”.
It
would
therefore
appear
from
the
language
of
subsection
231.3(3)
that
if
the
issuing
judge
comes
to
the
conclusion
that
the
conditions
of
paragraphs
231.3(3)(a),
(b)
and
(c)
are
met,
he
need
not
nor
is
he
permitted
to
consider
whether
there
has
been
a
previous
substantive
voluntary
compliance
by
the
taxpayer,
whether
further
documents
might
be
remitted
voluntarily,
or
whether
the
applicant
for
the
warrants
has
taken
all
reasonable
steps
to
obtain
the
information
from
an
alternative
source
before
applying
for
the
warrants.
In
brief,
if
the
conditions
are
met,
he
must
issue
the
warrant.
As
this
Court
said
in
Re
Manitoba
Language
Rights,
[1985]
1
S.C.R.
721,
[1985]
4
W.W.R.
385,
19
D.L.R.
(4th)
1
at
page
737
(W.W.R.
398,
D.L.R.
14),
the
presumption
that
the
word
"shall"
is
intended
to
be
mandatory
should
be
followed
unless:
.
.
.
such
an
interpretation
of
the
word
"shall"
would
be
utterly
inconsistent
with
the
context
in
which
it
has
been
used
and
would
render
the
sections
irrational
or
meaningless.
Hugessen,
J.A.
found
no
reason
to
depart
from
the
presumption,
and
I
would
adopt
what
he
said
in
this
regard,
at
page
131
(D.T.C.
5059):
There
is,
as
it
seems
to
me,
absolutely
nothing
in
the
context
of
section
231.3
of
the
Income
Tax
Act
which
would
render
an
imperative
interpretation
of
the
word
"shall"
in
subsection
231.3(3)
inconsistent
with
the
balance
of
the
section
or
make
it
irrational
or
meaningless.
Indeed,
I
can
see
nothing
in
the
section
which
would
point
to
a
permissive
or
discretionary
meaning
for
“shall”.
On
the
contrary,
the
draughtsman
has
clearly
used
the
permissive
may”
where
this
is
appropriate
(as
for
example
in
subsection
231.3(1)
and
(5))
and
the
use
of
“shall”
in
subsection
231.3(3)
(as
well,
it
may
be
noted,
as
in
subsection
231.3(6))
has
every
appearance
of
being
a
deliberate
choice.
Furthermore,
the
whole
of
section
231.3
represents
a
change
from
the
previous
law
[subsection
231(4)]
which
was
couched
in
terms
that
were
clearly
permissive
and
left
a
discretion
in
the
hands
of
the
judge
authorizing
the
seizure.
Also,
as
noted
above,
the
text
of
subsection
231.3(3)
is
unique
and
differs
remarkably
from
all
other
Canadian
search
warrant
provisions
[which
are
invariably
permissive].
I
cannot
view
such
a
change
from
both
previous
and
current
practice
as
being
anything
but
intentional.
I
also
agree
with
Hugessen,
J.A.
that
the
existence
of
a
discretion
is
indispensable
to
the
imposition
of
conditions
to
the
issue
of
the
warrant.
As
he
states,
this
conclusion
follows
from
what
was
said
by
Lamer,
J.
in
Descôteaux,
supra.
Although
I
would
not
go
so
far
as
to
hold
that
Parliament
had,
in
the
absence
of
express
language,
removed
the
power
to
specify
the
terms
upon
which
the
warrant
is
executed,
I
agree
that
the
power
to
attach
pre-conditions
to
the
issue
of
the
warrant
cannot
be
exercised
once
the
statutory
criteria
for
the
issue
of
the
warrant
have
been
met.
Moreover,
I
do
not
accept
the
position
taken
by
Reed,
J.
at
trial
and
adopted
by
the
appellants
that
a
judge’s
inherent
power
to
prevent
an
abuse
of
the
court's
process
or
a
violation
of
a
constitutional
right
continues
to
confer
on
an
issuing
judge
the
discretion
to
refuse
to
issue
a
warrant
in
those
circumstances.
As
Hugessen,
J.A.
concluded,
at
page
131
(D.T.C.
5060),
if
the
conditions
set
out
in
the
subsection
are
exhaustive
of
all
the
conditions
precedent
of
a
reasonable
search,
"an
application
which
meets
all
of
those
conditions
cannot
be
an
abuse
of
the
process".
Finally,
I
observe
that
the
British
Columbia
Court
of
Appeal
held
in
Kour-
tessis,
supra,
that
subsection
231.3(3)
preserved
the
crucial
"balance
wheel"
function
of
the
issuing
judge,
and
the
removal
of
the
discretion
to
refuse
to
issue
a
warrant
when
all
statutory
criteria
are
met
is
of
no
consequence.
I
agree
with
Hugessen,
J.A.
in
rejecting
this
line
of
reasoning.
As
I
have
already
indicated,
in
order
properly
to
fulfil
the
“balance
wheel"
role
required
by
section
8
of
the
Charter,
a
judge
must
be
able
to
weigh
all
the
surrounding
circumstances
to
determine
whether
in
each
case
the
interests
of
the
state
are
superior
to
the
individual’s
right
to
privacy.
By
restricting
the
factors
that
a
judge
may
consider,
Parliament
has
improperly
restricted
a
judge’s
ability
to
assess
the
reasonableness
of
a
search.
For
example,
as
Reed,
J.
noted,
subsection
231.3(3)
precludes
a
judge
from
taking
into
consideration
whether
reasonable
alternative
sources
for
obtaining
information
sought
from
the
search
of
a
lawyer's
office
exist,
notwithstanding
the
requirement
in
Descôteaux,
supra,
that
this
factor
be
considered
before
a
search
warrant
under
what
is
now
section
487
of
the
Criminal
Code,
R.S.C.,
1985,
c.
C-46,
is
issued.
Bearing
all
this
in
mind,
I
conclude
that
subsection
231.3(3),
by
using
the
words
”
shall
issue”,
denies
the
issuing
judge
the
discretion
to
refuse
to
issue
a
warrant
where
in
all
the
circumstances
a
search
or
seizure
would
be
unreasonable.
In
fact,
the
subsection
makes
it
possible
for
a
judge
to
be
statutorily
bound
to
authorize
an
unreasonable
search
or
seizure.
For
this
reason
the
use
of
the
word
shall”
brings
subsection
231.3(3)
into
conflict
with
section
8
of
the
Charter.
It
was
submitted,
however,
that
the
above
conclusion,
while
it
might
be
correct
in
a
Hunter
v.
Southam
Inc.
situation,
has
no
application
to
the
Act
because
it
is
a
regulatory
statute
and
the
criteria
of
Hunter
must
be
relaxed.
I
accept
that
the
majority
characterized
the
Act
as
a
regulatory
statute
in
McKinlay
Transport
Ltd.
v.
The
Queen,
supra.
In
my
opinion,
however,
in
the
very
different
circumstances
of
this
case,
while
that
classification
may
affect
the
exercise
of
discretion
by
the
authorizing
judge,
it
is
not
a
basis
for
reading
the
requirement
for
a
residual
discretion
out
of
section
8.
The
distinction
between
the
nature
of
the
state
intrusion
in
McKinlay
and
this
case
was
clearly
drawn
by
Wilson,
J.
in
her
majority
reasons.
At
pages
649-50
(D.L.R.
584,
C.R.R.
169),
she
States:
In
my
opinion,
subsection
231(3)
provides
the
least
intrusive
means
by
which
effective
monitoring
of
compliance
with
the
Income
Tax
Act
can
be
effected.
It
involves
no
invasion
of
a
taxpayer's
home
or
business
premises.
It
simply
calls
for
the
production
of
records
which
may
be
relevant
to
the
filing
of
an
income
tax
return.
At
page
649
(D.L.R.
584,
C.R.R.
169),
Wilson,
J.
recognized
that
relaxation
of
the
Hunter
standards
with
respect
to
the
demand
provisions
by
reason
of
the
characterization
of
the
statutory
provision
as
regulatory
would
not
validate
all
forms
of
searches
and
seizures
under
the
Act.
She
continued:
The
state
interest
in
monitoring
compliance
with
the
legislation
must
be
weighed
against
an
individual’s
privacy
interest.
The
greater
the
intrusion
into
the
privacy
interests
of
an
individual,
the
more
likely
it
will
be
that
safeguards
akin
to
those
in
Hunter
will
be
required.
Thus,
when
the
tax
officials
seek
entry
onto
the
private
property
of
an
individual
to
conduct
a
search
or
seizure,
the
intrusion
is
much
greater
than
a
mere
demand
for
production
of
documents.
[Emphasis
added.]
The
point
is
that
the
characterization
of
certain
offences
and
statutory
schemes
as
regulatory”
or
"criminal",
although
a
useful
factor,
is
not
the
last
word
for
the
purpose
of
Charter
analysis.
In
R.
v.
Wholesale
Travel
Group
Inc.,
[1991]
3
S.C.R.
154,
67
C.C.C.
(3d)
193,
8
C.R.
(4th)
145,
a
case
in
which
the
false/
misleading
advertising
offence
in
the
Competition
Act,
R.S.C.
1970,
c.
C-23,
as
amended,
was
attacked
under
sections
7
and
11(d)
of
the
Charter,
Justice
La
Forest
said
at
page
209
(C.C.C.
230,
C.R.
222)
that"what
is
ultimately
important
are
not
labels
(though
these
are
undoubtedly
useful),
but
the
values
at
stake
in
the
particular
context",
and
held
that
the
potential
five-year
prison
term
upon
conviction
of
the
offence
was
a
deprivation
of
liberty
requiring
much
greater
safeguards
to
conform
with
section
7
or
11(d)
than
the
provisions
at
issue
in
Thomson
Newspapers
Ltd.
v.
Canada
(Director
of
Investigation
and
Research),
[1990]
1
1S.C.R.
425,
72
O.R.
(2d)
415,
67
D.L.R.
(4th)
161,
76
C.R.
(3d)
129.
This
logic,
in
my
view,
applies
in
the
present
case.
Section
231.3
contemplates
and
authorizes
the
physical
entry
and
search,
against
the
will
of
the
occupant,
of
private
premises,
even
those
occupied
by
innocent
third
parties
against
whom
no
allegation
of
impropriety
is
levelled.
The
purpose
of
the
search
is
to
provide
evidence
to
be
used
in
the
prosecution
of
Act
offences.
Physical
search
of
private
premises
(I
mean
private
in
the
sense
of
private
property,
regardless
of
whether
the
public
is
permitted
to
enter
the
premises
to
do
business)
is
the
greatest
intrusion
of
privacy
short
of
a
violation
of
bodily
integrity.
It
is
quite
distinct
from
compelling
a
person
to
appear
for
examination
under
oath
and
to
bring
with
them
certain
documents,
under
a
subpoena
ducus
tecum
(Thomson
Newspapers,
supra),
or
to
produce
documents
on
demand
(McKinlay
Transport,
supra).
Both
Justices
La
Forest
and
L'Heureux-
Dubé
acknowledged
in
Thomson
Newspapers,
supra,
at
pages
520
and
594
(D.L.R.
230
and
288,
C.R.
207
and
265),
respectively,
that
the
power
to
search
premises
is
more
intrusive
of
an
individual’s
privacy
than
the
mere
power
to
order
the
production
of
documents.
The
intrusive
nature
of
a
physical
search
has
been
acknowledged
by
this
Court
on
various
occasions:
see
for
example
Canadian
Broadcasting
Corp.
v.
New
Brunswick
(Attorney
General),
supra.
Warrants
for
the
search
of
any
premises
constitute
a
significant
intrusion
on
the
privacy
of
an
individual
that
is
both
upsetting
and
disruptive.
Confidences,
unrelated
to
the
offence
being
investigated,
may
be
subject
to
scrutiny
by
strangers.
One
should
not
lose
sight
of
the
fact
that
section
231.3
allows
for
the
search
not
only
of
business
premises
but
also
of
the
homes
of
the
taxpayers
as
well
as
the
premises
of
innocent
third
parties.
Moreover,
the
premises
of
individuals
whose
relationship
with
the
impugned
taxpayer
may
be
subject
to
professional
privileges
and
whose
offices
may
also
contain
confidential
information
regarding
other
individuals
might
also
be
subject
to
a
search.
Given
the
intrusive
nature
of
searches
and
the
corresponding
purpose
of
such
a
search
to
gather
evidence
for
the
prosecution
of
a
taxpayer,
I
see
no
reason
for
a
radical
departure
from
the
guidelines
and
principles
expressed
in
Hunter,
supra.
The
effect
of
any
lessened
expectation
of
privacy
by
reason
of
the
character
of
the
Act
will
no
doubt
affect
the
exercise
of
discretion
by
an
authorizing
judge
but
cannot
justify
elimination
of
it.
This
is
enough
to
dispose
of
the
appeal.
I
will
go
on,
however,
to
consider
the
other
grounds
on
which
the
section
was
attacked
and
defended,
as
these
were
fully
argued.
The
resolution
of
these
additional
grounds
could
affect
the
remedy
which
is
appropriate.
(2)
Reasonable
Grounds"
to
Believe:
Subsection
231.3(3)
The
second
argument
raised
by
the
taxpayers
in
these
two
appeals
revolves
around
a
distinction
between
“reasonable
grounds"
and
"reasonable
and
probable
grounds".
The
argument
is
that
the
requirement
in
subsection
231.3(3)
of
“reasonable
grounds”
to
believe
the
statutory
criteria
are
met
is
constitutionally
insufficient,
since
it
is
a
lower
standard
than
"reasonable
and
probable
grounds”,
and
only
the
latter
will
satisfy
section
8.
The
argument
owes
its
(precarious)
existence
in
part
to
passages
in
Hunter,
supra,
which
are
invoked
by
both
sides.
On
the
one
hand,
Dickson,
J.
said,
at
page
168
(D.T.C.
6477,
D.L.R.
659,
B.L.R.
317),
that
"reasonable
and
probable
grounds
.
.
.
constitutes
[sic]
the
minimum
standard".
On
the
other,
he
said,
at
page
167
(D.T.C.
6477,
D.L.R.
658-59,
B.L.R.
317),
that
the
phrases"
reasonable
grounds
to
believe”
in
section
443
of
the
Criminal
Code,
R.S.C.
1970,
c.
C-34
(now
R.S.C.,
1985,
c.
C-46,
section
487)
and
“probable
cause”
in
the
American
Fourth
Constitutional
Amendment
were
identical.
In
my
view
nothing
turns
on
the
omission
of
the
word
"probable"
from
subsection
231.3(3).
The
standard
that
the
subsection
sets
out
is
one
of
credibly
based
probability,
which
is
the
standard
required
by
section
8
of
the
Charter.
I
respectfully
disagree
with
Locke,
J.A.’s
holding
in
Kourtessis,
supra,
that
"reasonable"
is
not
the
same
as"
reasonable
and
probable”,
and
I
find
that
his
use
of
an
interpretative
"gloss"
on
the
word
to
make
it
conform
to
constitutional
requirements
is
an
unnecessary
strain
on
the
meaning
of
the
word.
I
prefer
the
reasoning
of
Lysyk,
J.
in
the
British
Columbia
Supreme
Court
on
this
point.
Lysyk,
J.
noted
that
Hunter,
supra,
cast
no
doubt
on
the
formulation
reasonable
grounds”
in
section
443
(now
section
487)
of
the
Criminal
Code,
which
is
identical
in
that
respect
to
subsection
231.3(3)
of
the
Act.
He
held
that
the
distinction
relied
on
by
the
taxpayers
was
a
"refined
distinction”
of
the
type
found
in
American
jurisprudence
under
the
Fourth
Amendment,
with
its
"probable
cause”
warrant
clause,
to
be
avoided
in
the
interpretation
of
section
8
of
the
Charter:
R.
v.
Rao
(1984),
9
D.L.R.
(4th)
542,
40
C.R.
(3d)
1,
12
C.C.C.
(3d)
97,
(Ont.
C.A.),
leave
to
appeal
refused,
[1984]
2
S.C.R.
ix,
10
C.R.R.
275,57
N.R.
238.
To
my
mind,
Hunter,
supra,
does
not
give
rise
to
legitimate
controversy
on
this
point.
That
decision
required
reasonable
"and
probable”
grounds
and
simultaneously
established
that
the
two
words
import
the
same
standard.
"Reasonableness"
comprehends
a
requirement
of
probability.
As
Wilson,
J.
said
in
R.
v.
Debot,
[1989]
2
S.C.R.
1140,
52
C.C.C.
(3d)
193,
73
C.R.
(3d)
129,
at
page
1166
(S.C.R.),
aff’g
(1986),
30
C.C.C.
(3d)
207,
26
C.R.R.
275
(Ont.
C.A.),
at
page
219
(C.R.R.
285),
the
standard
to
be
met
in
order
to
establish
reasonable
grounds
for
a
search
is
"reasonable
probability”.
It
appears
that
the
normal
statutory
phrase
in
Canada
is
“reasonable
grounds”,
and
that
some
of
the
remaining
exceptions
requiring"
reasonable
and
probable
grounds”
have
been
amended
in
recent
years,
one
imagines
for
the
sake
of
uniformity,
by
deleting
"and
probable”:
see
Locke,
J.A.’s
reasons
in
Kourtessis,
supra,
at
pages
24-25.
This
use
of
“reasonable
grounds"
as
the
basis
for
the
issuance
of
search
warrants
is
not
constitutionally
fatal.
Rather,
it
meets
the
requirements
of
section
8.
(3)
Standard
for
the
Discovery
of
Evidence:
Paragraph
231.3(3)(b)
The
next
point
raised
by
the
taxpayers
is
that
paragraph
231.3(3)(b)
waters
down
the
minimum
constitutional
standard
for
the
probability
that
the
search
will
unearth
evidence.
This
argument
was
accepted
by
the
Federal
Court
of
Appeal.
The
taxpayers
rely
on
the
following
passage
from
the
reasons
of
Dickson,
J.
in
Hunter,
at
page
167
(D.T.C.
6477,
D.L.R.
658,
B.L.R.
316):
The
problem
is
with
the
stipulation
of
a
reasonable
belief
that
evidence
may
be
uncovered
in
the
search.
Here
again
it
is
useful,
in
my
view,
to
adopt
a
purposive
approach.
The
purpose
of
an
objective
criterion
for
granting
prior
authorization
to
conduct
a
search
or
seizure
is
to
provide
a
consistent
standard
for
identifying
the
point
at
which
the
interests
of
the
state
in
such
intrusions
come
to
prevail
over
the
interests
of
the
individual
in
resisting
them.
To
associate
it
with
an
applicant's
reasonable
belief
that
relevant
evidence
may
be
uncovered
by
the
search,
would
be
to
define
the
proper
standard
as
the
possibility
of
finding
evidence.
This
is
a
very
low
standard
which
would
validate
intrusion
on
the
basis
of
suspicion,
and
authorize
fishing
expeditions
of
considerable
latitude.
It
would
tip
the
balance
strongly
in
favour
of
the
state
and
limit
the
right
of
the
individual
to
resist,
to
only
the
most
egregious
intrusions.
I
do
not
believe
that
this
a
proper
standard
for
securing
the
right
to
be
free
from
unreasonable
search
and
seizure.
This
passage
underscores
the
need
to
protect
individuals
against
unreasonable
searches
in
the
form
of
“fishing
expeditions"
by
the
state.
This
Court
established
in
Hunter
that
a
standard
of
credibly-based
probability
rather
than
mere
suspicion
should
be
applied
in
determining
when
an
individual's
interest
in
privacy
is
subordinate
to
the
needs
of
law
enforcement.
In
my
view,
the
taxpayers'
argument
and
Hugessen,
J.A.'s
holding
that
paragraph
231.3(3)(b)
fails
to
meet
this
criterion
is
based
on
a
misreading
of
the
paragraph.
There
are
important
differences
between
the
statutory
language
at
issue
here
and
in
Hunter.
The
impugned
section
in
Hunter
provided
that
where
the
Director
of
Investigation
and
Research
of
the
Combines
Investigation
Branch
believed
there
"may
be
evidence"
relevant
to
an
inquiry,
officers
may
search
for
and
seize
anything
that
"may
afford
.
.
.
evidence":
Combines
Investigation
Act,
R.S.C.
1970,
c.
C-23,
subsection
10(1).
The
provision
at
issue
in
the
present
litigation
requires
reasonable
grounds
to
believe,
inter
alia,
that
something
that"
may
afford
evidence”
is"
likely
to
be
found”.
This
formulation
does
not
make
the
standard
the"possibility
of
finding
evidence",
which
was
rejected
as
too
low
in
Hunter
(at
page
167,
(D.T.C.
6477,
D.L.R.
658,
B.L.R.
316);
emphasis
in
original).
Rather,
it
meets
the
“
credibly
based
probability”
standard
required
by
section
8.
The
paragraph,
by
using
the
word
"likely"
in
respect
of
the
chance
of
finding
the
thing
sought,
imports
the
criterion
of
probability.
The
legislation
in
Hunter,
supra,
employed
the
lower
threshold
of
"may"
in
respect
of
the
chance
of
finding
the
thing
sought,
which
was
held
to
be
unacceptable.
When
Dickson,
J.
stated
that
at
a
minimum
there
must
be
reasonable
and
probable
grounds
to
believe
there
is
evidence
to
be
found
at
the
place
of
search
(at
page
168
(D.T.C.
6477,
D.L.R.
659,
B.L.R.
317),
it
must
be
remembered
that
he
was
addressing
himself
to
the
legislative
requirement
that
“evidence
may
be
found”,
which
made
mere
possibility
of
finding
evidence
the
criterion.
Dickson,
J.'s
reasons
in
Hunter
make
it
clear
that
the
controlling
standard
is
credibly-based
probability,
not
mere
possibility.
The
word
“likely”
meets
this
standard.
Its
use
in
paragraph
231.3(3)(b)
is
reinforced
by
the
explicit
terms
of
paragraph
231.3(3)(c).
The
word
"may"
is
used
in
a
different
sense
in
paragraph
231.3(3)(b),
namely
regarding
the
evidential
value
of
the
thing
sought.
The
use
of
the
word
may"
regarding
the
use
of
the
thing
found
as
evidence
in
a
prosecution
does
not
detract
from
the
standard
of
probability
of
finding
the
thing
sought;
rather,
it
recognizes
the
nature
of
the
investigative
process.
The
concern
in
Hunter
was
with
the
probability
of
finding
the
things
sought,
not
with
the
certitude
that
the
things
found
will
be
used
as
evidence.
The
taxpayers
do
not
restrict
their
argument
to
Hunter,
however.
They
also
refer
to
decisions
striking
down
section
111(1)
of
the
Customs
Act,
R.S.C.,
1985
(2nd
Supp.),
c.
1,
which
employed
the
words
"there
may
be
found”:
see,
for
example,
Goguen
v.
Shannon
(1989),
50
C.C.C.
(3d)
45,
97
N.B.R.
(2d)
44
(N.B.C.A.);
Nima
v.
Mclnnes
(1988),
45
C.C.C.
(3d)
419,
[1989]
2
W.W.R.
634,
32
B.C.L.R.
(2d)
197
(B.C.S.C.
in
Chambers).
Their
reliance
on
these
decisions
is
misplaced,
however.
The
objectionable
language
in
the
Customs
Act
had
to
do
with
the
standard
for
finding
the
things
sought,
not
for
affording
evidence
of
the
offence.
The
use
of
the
word
may"
regarding
the
use
of
the
thing
found
as
evidence
in
a
prosecution
simply
reflects
one
of
the
simple
realities
of
the
investigation
of
offences.
It
is
impossible
to
know
with
certainty
at
an
early
stage
in
any
investigation
what
particular
items
will
provide
evidence
in
a
trial.
I
concede
that
in
some
police
or
other
official
investigations
there
will
be
some
items
the
evidential
value
of
which
is
known
beforehand
and
of
which
it
can
be
said
with
confidence
that
"this
thing
will
probably
be
found
and
if
found,
will
be
used
as
evidence
at
trial”.
But
this
standard
cannot
be
expected
of
every
item
that
may
be
relevant
to
the
commission
of
the
offence.
Moreover,
even
in
what
appear
to
be
the
clear
cases,
it
is
often
impossible
to
know
with
certainty
the
evidential
value
of
the
things
sought.
That
will
often
depend
on
further
investigation
and
analysis
after
the
search
warrant
is
executed.
Accordingly,
to
exact
a
higher
standard
would
unduly
restrict
investigation
and
could
not
have
been
intended
as
a
prerequisite
to
a
valid
search
and
seizure.
I
conclude,
therefore,
that
the
standard
"may
afford
evidence",
when
coupled
with
a
requirement
of
credibly
based
probability
that
the
things
sought
are
likely
to
be
found,
passes
constitutional
muster.
I
find
support
for
this
conclusion
in
the
fact
that,
at
common
law,
"may
afford
evidence"
was
considered
a
sufficient
test
for
the
issue
of
a
warrant.
As
one
judge
put
it
in
a
fraud
case
(Wiens
v.
The
Queen,
[1973]
6
W.W.R.
757,
(1973),
24
C.R.N.S.
341,
(M.Q.B.),
at
page
763
(C.R.N.S.
347)):
It
is
not
necessary
for
the
magistrate
to
satisfy
himself
that
the
documents
sought
to
be
searched
in
the
case
before
this
Court
can
prove
the
fraud
alleged
to
have
been
committed.
He
need
not
adjudicate
upon
the
question
whether
the
offence
was
committed
at
the
time
he
issued
the
search
warrant,
nor
does
he
need
to
adjudicate
on
the
question
whether
the
documents
sought
can
in
fact
assist
in
establishing
the
commission
of
the
offence.
He
need
only
satisfy
himself
that
there
were
reasonable
grounds
for
believing
that
such
documents
could
be
of
assistance
in
establishing
the
commission
of
the
offence
and
that
they
were
in
the
premises
in
respect
of
which
the
search
warrant
is
sought.
[Emphasis
added.]
Although
counsel
for
the
Attorney
General
of
Canada
is
right
in
conceding,
as
he
does
in
his
factum,
that
the
common
law
standard
cannot
dictate
the
constitutional
standard,
I
agree
with
his
submission
that
the
logic
of
the
common
law
decisions
applies
with
added
force
to
the
complex
commercial
fraud
and
tax
evasion
cases
of
the
modern
era.
As
Hartt,
J.
said
in
R.
v.
Burnett,
[1985]
2
C.T.C.
227
(Ont.
H.C.),
at
pages
238-39:
Where
the
alleged
misconduct
is
of
a
complex
nature
in
which
funds
are
allegedly
funnelled
through
a
number
of
interrelated
companies
with
a
view
to
hiding
their
disposition,
it
seems
to
me
that
the
number
of
documents
that
may
afford
evidence
of
such
a
violation
may
well
be
very
great
indeed.
In
such
a
case,
an
entire
class
of
documents
may
in
fact
be
necessary
to
trace
the
transactions.
Granted,
many
documents
in
a
file
may
not,
in
the
final
analysis,
be
relevant
to
any
tax
violation.
However,
it
may
be
impossible
to
preclude
their
relevance
without
a
detailed
examination
of
all
the
documents
seized.
And,
in
Re
Print
Three
Inc.,
supra,
at
page
397
(C.T.C.
51.
D.T.C.
5306),
McKinnon,
A.C.J.O.
for
the
Court
(Martin
and
Thorson,
JJ.A.
concurring)
stated
:
.
.
.
because
of
the
extent
and
complexity
of
business
affairs,
made
possible
by
modern
technology
and
merchandising
methods,
it
is
impossible
to
define
with
exact
precision
the
documents
sought
in
cases
involving
fraud
or
tax
evasion.
Given
the
inherent
problems
in
specifying
the
particular
items
sought
to
be
seized
and
determining
how
they
fit
into
a
complex
pattern
of
economic
activity,
the
appropriateness
of
the
“may
afford
evidence”
standard
in
the
context
of
income
tax
investigations
is
apparent.
I
therefore
respectfully
disagree
with
Hugessen,
J.A.'s
accession
to
the
taxpayers'
argument
on
this
point
at
page
137
(D.T.C.
5064-65),
and
hold
that
the
language
of
paragraph
231.3(3)(b)
is
consistent
with
the
right
to
be
secure
against
unreasonable
search
or
seizure
in
section
8
of
the
Charter.
(4)
Wholesale
Search
And
Seizure:
Subsection
231.3(5)
Finally,
subsection
231.3(5)
is
attacked
for
allowing
the
same
kind
of
"wholesale
search
and
seizures”
without
prior
authorization
found
under
the
predecessor
legislation
to
violate
section
8
of
the
Charter.
The
Attorney
General
of
Canada
and
the
interveners
argued
that
given
the
nature
of
the
documents
involved
the
provision
is
a
reasonable
extension
if
not
a
reflection
of
the“
"plain
view"
doctrine
permitting
the
seizure
of
articles
in
plain
view.
The
taxpayers
submit
that
subsection
231.3(5)
goes
beyond
plain
view
seizures
since
it
will
rarely
be
apparent
whether
a
particular
document
constitutes
evidence
of
a
violation
of
the
Act.
The
difficulty
in
dealing
with
this
question
is
that
we
face
it
in
a
factual
vacuum
since
there
is
no
indication
that
documents
were
seized
in
reliance
on
this
provision.
We
are
always
loathe
to
adjudicate
constitutional
issues
in
the
absence
of
a
factual
foundation:
Danson
v.
Ontario
(Attorney
General),
[1990]
2
S.C.R.
1086,
73
D.L.R.
(4th)
686,
74
O.R.
(2d)
763;
MacKay
v.
Manitoba,
[1989]
2
S.C.R.
357,
61
D.L.R.
(4th)
385,
[1989]
6
W.W.R.
351,
at
pages
361
and
366
(D.L.R.
388
and
391-92,
W.W.R.
354
and
358);
R.
v.
Edwards
Books
and
Art
Ltd.,
[1986]
2
S.C.R.
713,
35
D.L.R.
(4th)
1,
58
O.R.
(2d)
442
at
pages
762
and
767-68
(D.L.R.
36
and
41).
I
think
the
issue
should
be
left
to
be
resolved
until
such
time
as
this
Court
is
presented
with
a
situation
in
which
the
provision
was
relied
upon
to
seize
documents.
In
view
of
the
remedy
which
I
have
adopted,
section
231.3
will
have
to
be
re-enacted
and
therefore
the
terms
of
this
subsection
may
warrant
reconsideration.
Moreover,
I
believe
that
the
provision
is
couched
in
language
that
is
susceptible
to
interpretation
so
as
to
confine
it
within
constitutional
limits
on
the
basis
outlined
by
Lamer,
J.
in
Slaight
Communications
Inc.
v.
Davidson,
[1989]
1
S.C.R.
1038,
59
D.L.R.
(4th)
416,
40
C.R.R.
100,
at
page
1078
(D.L.R.
444,
C.R.R.
130).
On
this
basis,
the
authority
to
seize
might
be
limited
to
documents
that
could
be
seized
on
the
basis
of
the
“plain
view”
doctrine
with
appropriate
refinements
to
comport
with
the
special
circumstance
of
income
tax
investigation.
C.
Section
1
As
I
said
at
the
outset
of
my
reasons,
I
do
not
intend
to
engage
in
any
section
1
analysis
since
neither
the
appellants
nor
the
interveners
in
this
appeal,
nor,
indeed,
the
respondent
or
the
interveners
in
Kourtessis,
have
made
any
submissions
or
directed
us
to
any
evidence
capable
of
demonstrating
that
section
231.3,
if
unreasonable
for
the
purposes
of
section
8,
is
yet
reasonable
and
demonstrably
justified
for
the
purposes
of
section
1.
The
burden
was
on
the
government
to
establish
that
the
law
constituted
a
reasonable
limit,
and
it
has
made
no
attempt
to
do
so.
As
observed
by
Dickson,
J.
in
Hunter,
it
is
problematic
as
to
"what
further
balancing
of
interests,
if
any,
may
be
contemplated
by
section
1,
beyond
that
envisaged
by
section
8”
(at
pages
169-70,
(D.T.C.
6478,
D.L.R.
660,
B.L.R.
318)).
Presumably
for
the
same
reason,
other
cases
in
this
Court
which
have
considered
section
8
of
the
Charter
have
not
addressed
section
1.
D.
Remedy
The
Federal
Court
of
Appeal
by
its
formal
order
quashed
the
search
warrants
and
declared
and
ordered
the
return
of
the
documents
seized
under
the
authority
of
the
warrant.
The
reasons,
however,
include
"a
declaration
that
section
231.3
of
the
Income
Tax
Act
is
of
no
force
or
effect”.
This
declaration
is
omitted
from
the
formal
judgment
but
I
assume
this
was
an
oversight.
No
submissions
were
made
by
the
appellants
to
the
effect
that,
if
the
appeal
failed,
the
relief
granted
by
the
Court
of
Appeal
should
be
varied.
The
order
sought
in
the
appellants'
factum
is
that
“the
appeal
be
allowed,
with
costs,
and
the
application
to
set
aside
the
search
warrant
be
dismissed”.
The
Attorney
General
of
Canada
also
submits
that
the
constitutional
question
be
answered
in
the
negative.
Technically,
therefore,
the
issue
of
a
remedy
other
than
that
which
was
granted
by
the
Court
of
Appeal
is
not
properly
before
us.
Furthermore,
there
is
no
question
that
striking
out
section
231.3
is
an
appropriate,
if
not
the
most
appropriate
remedy.
The
subsection
I
have
found
constitutionally
inadequate
is
the
one
prescribing
the
conditions
precedent
for
the
issuance
of
a
warrant.
Issuing
the
warrant
is
the
linchpin
of
the
whole
scheme,
and
all
the
other
parts
of
the
section
depend
for
their
relevance
upon,
and
are
inextricably
caught
up
with,
the
valid
issuance
of
a
search
warrant.
Without
the
power
to
issue
a
warrant,
the
rest
of
the
section
is
meaningless.
"Reading
down"
by
amending
the
clear
intent
of
a
statutory
provision
may
be
appropriate
in
some
cases.
The
decision
to
do
so
requires
a
determination
that
this
remedy
will
constitute
the
lesser
intrusion
into
the
role
of
the
legislature
consistent
with
upholding
the
values
and
objectives
of
the
Charter.
See
Osborne
v.
Canada
(Treasury
Board),
[1991]
2
S.C.R.
69,
at
page
104,
and
Schachter
v.
Canada,
[1992]
2
S.C.R.
679,
at
page
707.
This
is
a
determination
that
I
am
not
prepared
to
make
in
the
absence
of
submissions
by
the
Attorney
General
of
Canada
on
behalf
of
the
Government
of
Canada
that
reading
down
will
constitute
a
lesser
intrusion.
VII.
Disposition
I
would
dismiss
the
appeal
with
costs.
The
judgment
of
the
Court
of
Appeal
is
restored
but
its
formal
order
should
be
amended
to
include
the
declaration
with
respect
to
the
invalidity
of
section
231.3.
would
answer
the
constitutional
question
as
follows:
Question:
Whether
section
231.3
of
the
Income
Tax
Act,
S.C.
1970-71-72,
c.
63,
as
amended
by
S.C.
1986,
c.
6,
limits
the
rights
and
freedoms
guaranteed
by
sections
7
and
8
of
the
Canadian
Charter
of
Rights
and
Freedoms,
Part
I
of
the
Constitution
Act,
1982,
being
Schedule
B
of
the
Canada
Act,
1982
(U.K.),
1982,
c.
11,
and
is
consequently
of
no
force
or
effect
pursuant
to
section
52
of
the
Constitution
Act,
1982,
Schedule
B,
Canada
Act,
1982,
c.
11
(U.K.).
Answer:
Yes,
in
that
subsection
231.3(3)
violates
section
8.
Appeal
dismissed.
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