R. v. James; Dzagic v. R., 86 DTC 6432, [1986] 2 CTC 288 (Ont.C.A.), briefly aff'd 88 DTC 6273, [1988] 1 SCR 669

Tarnopolsky, J.A.:— The Attorney General of Canada seeks leave to appeal and if leave be granted appeals, pursuant to paragraph 771(1)(a) of the Criminal Code, on a question of law alone from the decision of the Honourable Judge Trotter, who dismissed appeals from acquittals of the respondents by His Honour Judge Lampkin on charges relating to nonpayment of income tax. The four appeals concerning James, Kirsten and Rosenthal arise out of the same facts.

The applications for leave to appeal and the appeals by Steve and Dorothy Dzagic are from an order of the Honourable Mr. Justice Smith, given on an appeal by way of stated case, by which he set aside the appellants' acquittals by His Honour Judge Lewis on charges relating to non-payment of income tax and remitted the matter to the Summary Conviction Court for continuation in accordance with the answers given. They seek leave to appeal and if leave be granted appeal, pursuant to paragraph 77(1 )(b) of the Criminal Code, on a question of law alone.

1. The Issue

The issue in both sets of appeals is whether, at a trial commenced after the coming into force of the Canadian Charter of Rights and Freedoms, section 24 thereof can be applied so as to exclude or refuse to admit evidence obtained, before the coming into force of the Charter, pursuant to paragraph 231 (1 )(d) of the Income Tax Act, R.S.C. 1952, c. 148, as amended (the “Act”) and retained for the trial pursuant to a pre-Charter retention order, on the ground that the means by which the evidence was obtained contravened section 8 of the Charter, either because (as in the Dzagic appeals), the seizure-authorizing provision under the Act, paragraph 231(1)(d), permitted unreasonable searches and seizures and so was itself contrary to section 8, or because (as in the James, Kirsten and Rosenthal appeals), the seizure was unlawful when it took place because it was not in accordance with the Act and in the circumstances contravened section 8.

Although, at the hearing before this Court, the Dzagic appeals were heard after those of James, Kirsten and Rosenthal, the facts of the Dzagic appeals will be set out first not only because this can be done more briefly, but also because the James, Kirsten and Rosenthal appeals involve issues additional to those shared by the two sets of appeals. In order to understand the facts better, however, it is useful to set out the most pertinent statutory and constitutional provisions.

2. Pertinent Statutory and Constitutional Provisions

Income Tax Act

231. (1) Investigations.—Any person thereunto authorized by the Minister, for any purpose related to the administration or enforcement of this Act, may, at all reasonable times, enter into any premises or place where any business is carried on or any property is kept or anything is done in connection with any business or any books or records are or should be kept, and

(a) audit or examine the books and records and any account, voucher, letters, telegram or other document which relates or may relate to the information that is or should be in the books or records or the amount of tax payable under this Act,

(b) examine property described by an inventory or any property, process or matter an examination of which may, in his opinion, assist him in determining the accuracy of an inventory or in ascertaining the information that is or should be in the books or records or the amount of any tax payable under this Act,

(c) require the owner or manager of the property or business and any other person on the premises or place to give him all reasonable assistance with his audit or examination and to answer all proper questions relating to the audit or examination either orally or, if he so requires, in writing, on oath or by statutory declaration and, for that purpose, require the owner or manager to attend at the premises or place with him, and

(d) if, during the course of an audit or examination, it appears to him that there has been a violation of this Act or a regulation, seize and take away any of the documents, books, records, papers or things that may be required as evidence as to the violation of any provision of this Act or a regulation.

(2) Return of documents, books, etc.—The Minister shall,

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

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

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

(3) Idem.—The Minister may, for any purposes related to the administration or enforcement of this Act, by registered letter or by a demand served personally, require from any person

(a) any information or additional information, including a return of income or a supplementary return, or

(b) production, or production on oath, of any books, letters, accounts, invoices, statements (financial or otherwise) or other documents,

within such reasonable time as may be stipulated therein.

(4) Search.—Where the Minister has reasonable and probable grounds to believe that a violation of this Act or a regulation has been committed or is likely to be committed, he may, with the approval of a judge of a 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) Evidence in support of application.—An application to a judge under subsection (4) shall be supported by evidence on oath establishing the facts upon which the application is based.

(6) Access and copies.—The person from whom any documents, books, records, papers or things are seized pursuant to paragraph (1)(d) or subsection (4) is, at all reasonable times and subject to such reasonable conditions as may be determined by the Minister, entitled to inspect the seized documents, books, records, papers or things and to obtain copies thereof at his own expense.

Canadian Charter of Rights and Freedoms

Guarantee of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Legal Rights

8. Everyone has the right to be secure against unreasonable search or seizure.

Enforcement ent

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

3. The Facts

(a) R. v. Steve Dzagic; R. v. Dorothy Dzagic

On May 30, 1983, the appellants were each charged in separate informations with one count of tax evasion, contrary to paragraph 239(1)(d) of the Income Tax Act, R.S.C. 1952, c. 148, as amended (the “Act”). Each was also charged with three related counts of making false or deceptive statements in their returns of income for the taxation years 1978, 1979 and 1980 by failing to report certain taxable income, contrary to paragraph 239(1 )(a).

In proceedings against the appellant Dorothy Dzagic, the trial judge held a voir dire to determine the admissibility of certain documents, books, records, papers and things (the “evidence”) seized from the appellants by investigators with the Department of National Revenue (the “Department”). The seizure occurred on August 31 and September 1, 1981, at the appellants’ business premises and residence. It was carried out pursuant to paragraph 231 (1 )(d) of the Act. The evidence was kept pursuant to a retention order obtained on December 14, 1981 by the Minister on an ex parte application under subsection 231(2).

At the conclusion of the voir dire, the trial judge found, as a fact, that the seizure occurred prior to the enactment of the Charter and that it was lawfully carried out at the time in accordance with paragraph 231 (1)(d) of the Act. He also found that the investigators did not breach any departmental directives in carrying out the seizure and that their conduct throughout was untainted by any bias, threat, inducement or improper motive.

A Mr. Henryk Kuzinski, an investigator with the Department, prepared the affidavit in support of the application for the retention order. In it he indicated that the evidence was seized pursuant to paragraph 231(1)(d) of the Act, because his investigation of the appellants provided him with reasonable grounds to believe that there had been a violation of the Act. A Mr. Vettese actually carried out the seizure under paragraph 231(1)(d), because Kuzinski was not so authorized. The trial judge found as a fact that, having regard to his limited involvement to that point, Vettese seized the evidence on the appearance to him that there had been a violation of the Act. It might have been preferable if the trial judge had expressly stated that the seizure occurred during the course of an audit or examination. However, this may be inferred from his express finding that the seizure was in accordance with paragraph 231 (1 )(d).

The trial judge initially ruled that section 8 of the Charter did not apply to permit him to exclude the evidence pursuant to section 24 thereof, and that, even if it did apply to render the seizure unreasonable, he would not exclude the evidence because, having regard to all the circumstances, its admission would not bring the administration of justice into disrepute.

Upon receiving further argument based on Hunter et al. v. Southam Inc. (1984), 11 D.L.R. (4th) 641; 14 C.C.C. (3d) 97 (S.C.C.) and this Court’s decision in Re Chapman and The Queen (1984), 46 O.R. (2d) 65; 12 C.C.C. (3d) 1, the trial judge set aside his earlier ruling and held that paragraph 231 (1)(d) of the Act was of no force and effect because it was inconsistent with section 8 of the Charter. He excluded the evidence under subsection 24(2) of the Charter because in his view its admission would bring the administration of justice into disrepute.

Absent the excluded evidence, the Crown could not establish a prima facie case against either appellant and the trial judge dismissed both informations.

The Attorney General of Canada appealed the decision by way of stated case pursuant to section 762 of the Criminal Code. The trial judge stated four questions which were answered by the appeal judge as set out below:

(1) Did I err in law in holding that s. 231 (1)(d) of the Income Tax Act, R.S.C. 1952, c. 148 is inconsistent with the provisions of s. 8 of the Canadian Charter of Rights and Freedoms and that it is therefore of no force and effect?

ANSWER: NO

(2) Did I err in law in holding that the admission into evidence of the seized material at this time would constitute an infringement or denial of the Defendant's rights or freedoms as guaranted by the Canadian Charter of Rights and Freedoms!

ANSWER: YES (in so far as it is meant to address the question of retrospectivity)

(3) Did I err in law in holding that having regard to all the circumstances, the admission of the evidence of the Defendant’s records would bring the administration of justice into disrepute and that such evidence should therefore be excluded pursuant to the provisions of s. 24(2) of the Canadian Charter of Rights and Freedoms!

ANSWER: YES

(4) Did I err in law in holding that I could, under s. 24(1) of the Canadian Charter of Rights and Freedoms, refuse to admit such evidence on the grounds that such refusal is a just and appropriate remedy in the circumstances?

ANSWER: YES

The appeal judge set aside the appellants’ acquittals and remitted the matter to the Summary Conviction Court to be dealt with in accordance with the answers given.

(b) R. v. James, R. v. James and Kirsten, R. v. Kirsten, R. v. Rosenthal

On May 30, 1983, the respondent James was charged with one count of tax evasion, contrary to paragraph 239(1 )(d) of the Act and with four related counts of making false or deceptive statements in his returns of income for the taxation years 1974, 1975, 1976 and 1977, contrary to paragraph 239(1 )(a), by failing to report certain taxable income. He and the respondent Kirsten were charged in a separate information with conspiracy to evade taxes imposed on James for those same years, contrary to paragraph 239(1)(e). Kirsten was also charged with three offences under paragraph 239(1)(a) for reporting income not earned by her for the taxation years 1976, 1977 and 1978. The respondent Rosenthal was charged under the same section for participating in the reporting of income by a third party for the taxation year 1976, which income was not that of the third party.

In proceedings against James, the trial judge held a voir dire to determine the admissibility of books, records and other documents (the “evidence") obtained by investigators with the Department on September 12, 1978. The evidence was removed from the offices of James’ law firm, James and Suits, and from the offices of K.C.R. Investments Ltd. (“K.C.R.”), which was a client company of the James and Suits law firm, K.C.R.’s auditors, Norman & Ross, and the auditors of James and his law firm, Yale & Partners. The evidence was kept pursuant to a retention order obtained on January 9, 1979 by the Minister on an ex parte application under subsection 231(2) of the Act.

The evidence obtained from James, his law firm, K.C.R. and Kirsten was purported to be seized pursuant to paragraph 231(1)(d) of the Act. However, it would appear that Norman & Ross and Yale & Partners surrendered evidence pursuant to Ministerial written demands for information and the production of documents, which demands were purportedly authorized under subsection 231(3) of the Act. Nevertheless, I propose to discuss both the seized and the surrendered evidence of September 12,1978 as “seized” because, although the trial judge and the main Department witness did make the distinction, they also referred to both as “seizures” under paragraph 231 (1 )(d) and the trial judge so deals with the case.

Mr. David Kimball, a senior investigator with the Department, was the only witness to appear on the voir dire. He testified that a junior investigator under his supervision, Mr. Jak Koo, had conducted an audit of K.C.R. As a result of this investigation, they suspected that money paid by K.C.R. to Kirsten constituted additional unreported income of James, because many of these payments had annotations for legal fees or expenses for James or “J & S”. However, when Kirsten and an officer of K.C.R. were interviewed, both asserted that the payments formed part of Kirsten's income. In fact, she had reported some of the income during the years under review.

In view of the conflicting evidence, Kimball did not seek Ministerial authorization and judicial approval for a search warrant under subsection 231(4) of the Act, because he could not swear, as required by subsection 231(5), that he had reasonable and probable grounds to believe that there had been a violation of the Act.

During the first week of August 1978, Kimball prepared a “plan re proposed Ministerial seizure”. He arranged for a simultaneous seizure of evidence at six locations: the two offices of James and Suits, the offices of K.C.R., Norman & Ross and Yale & Partners, and the public school at which Kirsten was a teacher. A team leader, who was a senior investigator, and at least one other investigator attended at each location.

At the time of their attendance at each of the six locations, the team leaders had Ministerial authorizations which permitted them, as senior investigators,

to exercise all the powers set forth in subsection 231(1) and (9) of the Income Tax Act . . . which powers include the right:

(a) to enter any premises or place;

(b) to audit or examine any property including books, records, writing or other documents;

(c) to require assistance with such audit or examination and the answering of questions relating thereto;

(d) to seize and take away any such books, records, writing or other documents;

(e) to make or cause to be made, copies of books, records, writings or other documents;

and to administer or to receive an oath, affirmation or statutory declaration required to be given by or pursuant to Section 231 of the Income Tax Act . . .

In addition, each of the team leaders possessed subsection 231(3) demands.

Kimball arrived at the Sheppard Avenue office of James and Suits at 10:00 a.m. on September 12, 1978, one-half hour earlier than the other investigators were to attend at their respective locations, to confront James wih the documentary evidence and receive an explanation from him. He testified that if James had given appropriate answers to the questions, he would have cancelled the seizures and told the other investigators to leave their assigned premises.

After questioning James, Kimball was convinced that there had been a violation of the Act and he told James this, whereupon he served James with two subsection 231(3) demands. One was addressed to James personally and required, forthwith, information and production of documents as follows:

(a) Production of all books of account, correspondence, contracts, agreements, working papers, bank statements, cancelled cheques, vouchers and any other record or document that pertains to "PEDIGREE HOLDINGS INC.” for the period of Jan. 1, 1977 to Dec. 31, 1977.

(b) A statement setting out all bank accounts, mortgages, real estate holdings, stocks or bonds owned by you or controlled by, for or on your behalf.

The second demand was addressed to the law firm, James and Suits, to James’ attention and required, forthwith, information and production of documents as follows:

(a) Production of all clients’ files, contracts, agreements, working papers, books of account, bank statements and cancelled cheques (Trust & General), statements of account to clients, correspondence, paid vouchers, clients’ ledger cards, and any other records, documents, or papers that pertain to the law practice of James & Suits for the period of Feb. 1, 1973 to Jan. 31, 1977.

(b) Production of all books of account, correspondence, contracts, agreements, files, working papers, bank statements, cancelled cheques, vouchers, and any other records or documents pertaining to any income earned by you from investments, real estate or any other source for the period of Jan. 1, 1974 to Dec. 31, 1977.

The final paragraph of each letter referred to the penalty provided for in subsection 238(2) of the Act for failure to comply with the subsection 231(3) demand.

After the subsection 231(3) demands were served, approximately 60 cartons of evidence were taken from the Sheppard Avenue offices of James and Suits and a further 171 cartons were taken from the Shuter Street location. James gave an undertaking to produce the records of Pedigree Holdings Inc. at a later date, and he subsequently provided the investigators with this evidence.

Investigators served subsection 231(3) demands at the other locations. The evidence seized included K.C.R.'s records, except its minute book and financial statements, and correspondence files and other documents of Norman & Ross and Yale & Partners. Kirsten had no documents at school and later produced some papers at her residence. The Crown did not seek to adduce evidence taken from Kirsten at trial.

The seizures were conducted in a polite manner and, apart from the threat of prosecution under subsection 238(2) of the Act, no harsh words were spoken by any of the parties.

At the conclusion of the voir dire, the trial judge found as a fact that there was no audit of James, his firm or Kirsten as of September 12, 1978. He held that the seizure of evidence at K.C.R. was illegal because Koo, the investigator conducting the audit of K.C.R., was a junior investigator and as such was not authorized to seize the evidence pursuant to paragraph 231 (1 )(d) of the Act. He also held that the investigators had no right to seize any evidence at any other locations.

He concluded that the seizures were not only illegal, but unreasonable as well because the demand for documents forthwith, without prior notice, was unreasonable, because the Minister ought to have known, since the decision in Royal American Shows Inc. v. His Honour Judge R. McClelland and the Minister of National Revenue, [1977] CT.C. 52; 77 D.T.C. 5052, that he had no authority to seize documents of K.C.R. at locations other than at its office, and because “he knew or ought to have known that he could not seize the documents of James at any location under section 231 (1)(d) except in the course of an audit or examination and none such had been undertaken” (p. 38).

He went on to compare the pre-Charter situation set out in R. v. Wray, [1970] S.C.R. 272; 4 C.C.C. (2d) 1 with the post-Charter cases in this Court of R. v. Longtin (1983), 41 O.R. (2d) 545; 5 C.C.C. (3d) 12, R. v. Antoine (1983), 41 O.R. (2d) 607; 5 C.C.C. (3d) 97 and Re Chapman and The Queen, supra, and concluded that although the seizure occurred before the Charter came into force, “[t]he initial illegal seizure and continued detention constitute a continuing trespass to his property and until the condition is abated, it gives rise to actions de die in diem”. Therefore, he concluded, the evidence was obtained in violation of section 8 of the Charter, and had to be excluded pursuant to subsection 24(2) thereof, because its admission would bring the administration of justice into disrepute.

Absent the excluded evidence, the Crown could not establish a prima facie case against James and so, on December 10, 1984, the trial judge dismissed the informations and, on the same day and for the same reasons, the charge of conspiring to evade taxes was dismissed as well. Four days later, on December 14, 1984, the respondents Kirsten and Rosenthal appeared before the same trial judge on the charges against them, but counsel conceded that the same evidence and ruling as in the James matter would be applicable and so they too were aquitted.

The Attorney General of Canada appealed the acquittals of all the respondents pursuant to section 748 of the Criminal Code. The appeal judge dismissed the appeals and endorsed the record as follows:

I accept the findings of fact and their application to the law in the very thorough ruling of His Honour Judge V. Lampkin, therefore the appeal is dismissed.

4. Retrospect!vity

(a) Submissions of Counsel

Each counsel for the Attorney General of Canada in each of these two sets of appeals submits that to apply sections 8 and 24 of the Charter to the obtaining of evidence in these cases would be giving, in effect, retrospective application to these sections. They refer to the fact that both the taking of the evidence and the retention orders occurred long before the coming into force of the Charter and to the fact that, other than the trials themselves, no other procedure or proceeding took place since the Charter came into force.

They submit that since R. v. Longtin, supra, in 1983, the view of this Court has been that section 8 of the Charter is a new substantive right which does not apply to pre-Charter seizures and that as recently as December 1985, in Re Pica and Attorney-General of Canada (1985), 53 O.R. (2d) 193; [1986] 1 C.T.C. 155 this Court reaffirmed this view and held in that case that section 8 has no application where both the seizure and the retention order under the Income Tax Act were made before the Charter came into force and no post-Charter violations had occurred.

Mr. Hubbard, in the James, Kirsten and Rosenthal appeals, refers further to the following trial court decisions: Re Regina and Shea (1982), 38 O.R.

(2d) 582 at 586; 1 C.C.C. (3d) 316 at 321 (O.H.C.); Thyssen Canada Ltd. v. The Queen, [1984] C.T.C. 64 at 69; 84 D.T.C. 6049 at 6053 (F.C.T.D.); and R. v. Burnett and Ruthbern Holdings Ltd., [1985] 2 C.T.C. 227 at 242-43 (O.H.C.); all three of which held that section 8 could not apply to pre-Charter searches and seizures, and the last two of which did so in the context of the obtaining of evidence under the Income Tax Act. In addition, and also concerning a seizure under the Income Tax Act, Mr. Shilton in the Dzagic appeals added R. v. Kresanoski (unreported, Alberta Q.B., released January 11, 1985). He also referred to the decision of this Court in Re McDonald and The Queen (1985), 51 O.R. (2d) 745 and of the Supreme Court of Canada in Dubois v. The Queen, [1985] 2 S.C.R. 350; 23 D.L.R. (4th) 503 for the proposition that one focuses on the time of the act in question for the law in force. In other words, the law in force at the time of seizure should govern.

In response, counsel for the two sets of taxpayers both argue that applying sections 8 and 24 of the Charter to these cases is not to give those sections retrospective effect. Each counsel, however, presents a slightly different approach, based upon the fact that in the Dzagic appeals the trial judge found that the seizure was in accordance with the applicable provision in the Act and so the challenge on appeal is to that provision, while in the James, Kirsten and Rosenthal appeals the seizure was found by the trial judge not to be in accordance with the Act and so the focus is on the seizure found to be unlawful under the law in force at that time, and, in his opinion, on the facts unreasonable as well. Thus, the essence of the submission by Mr. Morrison, counsel for James, Kirsten and Rosenthal, can be found in paragraphs 9, 10 and 11 of his factum:

9. . .. [W]here the seizure of documents was made illegally and unreasonably, although prior to the enactment of the Charter, and where the Crown seeks to introduce those documents as evidence in proceedings commenced only after the Charter has come into force, the invocation of Sections 8 and 24 of the Charter is not to give the Charter or the Sections retrospective effect.

10. ... [T]he detention of documents seized illegally and unreasonably, being unlawful, constitutes a continuing trespass to the Respondent’s property and an infringement of the Respondent’s right to be secure against unreasonable search or seizure.

11. . .. [W]here the seizure of documents was made illegally and unreasonably, the introduction of those documents as evidence at trial constitutes an infringement of the Respondent’s right to be secure against unreasonable search or seizure.

As mentioned, counsel for the Dzagics, Mr. Taman, takes a somewhat different approach. He argues that there is nothing in the wording of the Charter to lead this Court to one side or the other on the timing issue during the transitional period to a wholly post-Charter situation. Here there is no issue of retrospectivity since there would be no case if the Crown had not decided to proceed post-Charter. Moreover, even if there is a retrospectivity issue, he submits, the Court should not be bound by the old distinctions with respect to statutory construction between changes of a procedural or substantive nature, but rather the canons of interpretation put forth by the Supreme Court of Canada in Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at 105-6; 11 D.L.R. (4th) 641 at 649, which require a focus on: (a) the fact that the Charter is the supreme law of Canada; and (b) the right at issue, i.e., section 8, to determine its purpose in the sense of who and what is sought to be protected. This he suggests is the right to privacy. That right, he submits, is offended as much by the retention of the evidence into the post-Charter period as by the original seizure.

Mr. Taman supports his argument by referring to Bill C-84, a Bill to amend section 231 of the Income Tax Act, to remove the seizure power in paragraph 231 (1 )(d) for the purpose (according to the accompanying technical notes indicating the mischief to be overcome) of having the search and seizure powers based on standards established by the Charter. (We were subsequently informed that since the hearing of this appeal, Bill C-84 was enacted as 1986 (Can.), c. 6.)

Both counsel rely upon the decision of this Court in Re Chapman and The Queen, supra, and that of the Manitoba Court of Appeal in Blackwoods Beverages Ltd. et al. v. The Queen et al., [1985] 2 W.W.R. 159; 47 C.P.C. 294 to argue that post-Charter retention of pre-Charter obtained evidence can be considered in relation to sections 8 and 24 of the Charter. They further make reference to R. v. Antoine, supra, and R. v. Langevin (1984), 11 C.C.C. (3d) 336; 8 D.L.R. (4th) 485, both decided by this Court, and R. v. Konechny (1983), 10 C.C.C. (3d) 233; 6 D.L.R. (4th) 350, decided by the British Columbia Court of Appeal, for the proposition that courts can consider pre-Charter events in post-Charter dispositions.

(b) The Disposition

I think I can start this consideration by quoting my brother Morden in the recent case of R. v. Lucas; R. v. Neely (unreported, released March 27, 1986), when he began his consideration of whether section 15 of the Charter could be invoked to apply to actions occurring before section 15 came into effect on April 17, 1985, at p. 8:

Since the Charter has come into effect there has been, as one might well expect, considerable case law on whether it can be invoked in cases involving preCharter facts. The results have not all been uniform and this, of course, has been understandable because of the variation among the cases in their underlying facts, in the nature of the Charter right asserted, in the consequential relief sought, and in the private and public interests affected.

The range of options seem to run from “What's Done is Done" (David H. Doherty, “'What's Done is Done': An Argument in Support of a Purely Prospective Application of the Charter of Rights" (1982), 26 C.R. (3d) 121), to that of determining legislative intent by considering the constitutional status of the Charter and examining the consequences of applying a specific provision retrospectively (William Black, “Charter of Rights — Application to Pre-Enactment Events" (1982), U.B.C. Law Review Charter Edition 59).

In reviewing the cases it becomes obvious that if there is any difference between the two lines, it is not so much as to whether the Charter can have retrospective application. No case in this Court or the Supreme Court of Canada has questioned the assertion of Blair, J.A., in R. v. Longtin, supra, that the Charter does not have retrospective application. The issue has rather been whether, in the particular case, giving effect to a provision in the Charter does or does not amount to a retrospective application.

In analyzing the cases from this perspective it is useful to keep in mind the explanation of what is retrospectivity provided by one of Canada’s leading experts on statutory interpretation, E.A. Driedger in “Statutes: Retrospective Reflections" (1978), 56 Can. Bar. Rev. 264 at 268-69:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.

In light of these definitions and distinctions, it is proposed to review those cases which may appear to apply the Charter retrospectively but which, I would suggest, do not.

In R. v. Antoine, 41 O.R. (2d) 607; 5 C.C.C. (3d) 97, the accused sought to invoke paragraph 11(b) of the Charter, which guarantees the right to be tried within a reasonable time. The accused had been charged before the coming into force of the Charter, but was tried after that time. The Court's discussion of whether the Charter applied suggests that retrospective application could not be given, but that in this case no question of retrospectivity arose with respect to paragraph 11(b). On behalf of the Court Martin, J.A. said, at 612 (C.C.C. 102):

In my view, no retrospectivity issue arises with respect to the application of s. 11(b) of the Charter to the present case. The Charter was in force at the time of the respondent's arraignment and consequently the respondent was entitled to invoke the provisions of s. 11(b). Manifestly, s. 11(b) of the Charter applies only to trials taking place after it came into force, and it does not reach back and affect past trials. An enactment does not, however, operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force, nor because it takes into account past events. . . .

Thus, although Martin, J.A. considered pre-Charter events, the application of paragraph 11(b) of the Charter was not retrospective, since the Charter provision invoked was applied to the facts existing at the time it was applied.

His elucidation of the issue can be seen even more clearly in his discussion of the remedies clause, section 24, at 614 (C.C.C. 104):

Patently, s. 24 can be invoked only where a right guaranteed by the Charter is alleged to have been infringed, and I accept, of course, that there cannot be a breach of a new right conferred by the Charter prior to the creation of the right. For example, s. 10(b) of the Charter provides that everyone has the right on arrest “to retain and instruct counsel without delay and to be informed of ti^at right’’. The words which I have italicized confer a new right. That right could not be contravened prior to the coming into force of the Charter because the right did not exist: see R. v. Lee (1982), 142 D.L.R. (3d) 574, 1 C.C.C. (3d) 327, 30 C.R. (3d) 395 (Sask. C.A.). Where, however, there has been a breach of a right secured by the Charter it would be illogical to hold that the remedy provided by s. 24 for Charter contraventions does not apply merely because the proceeding in which the Charter right was contravened was initiated prior to the coming into force of the Charter, where the contravention occurred after the Charter came into effect. ... The provisions of the Charter must be read together and when they are so read it is, in my view, clear that the remedy provided by s. 24 is intended to be applicable to contraventions of rights secured by the Charter which take place in a proceeding being carried on after the Charter even though that proceeding was instituted before the Charter. I do not think that such an interpretation of the Charter does violence to any constitutional principle, or, indeed, any principle of statutory interpretation.

Chronologically, the next of the cases that seemed to give a retrospective interpretation to the Charter is that of R. v. Konechny, which concerned a challenge to a provision in the British Columbia Motor Vehicles Act prescribing a minimum sentence of imprisonment for driving while one's licence was suspended. It was alleged that such imprisonment was arbitrary and constituted cruel and unusual punishment contrary to sections 9 and 12, respectively, of the Charter. Although the British Columbia Court of Appeal decided two to one that the Charter was not in fact contravened, all three considered the allegations, even though the conviction was recorded and the sentence was imposed before the Charter came into effect. On the retrospectivity issue Macfarlane, J.A. stated, at 250 (D.L.R. 368):

. . . The rights under ss. 9 and 12 are new rights in their application to provincial legislation. With respect to such new substantive rights the Charter operates prospectively: see Re A.-G. Can. and Stuart (1982), 137 D.L.R. (3d) 740, 44 N.R. 320. A prospective application of the Charter would justify the release of a person, who had been or was to be arbitrarily detained or imprisoned, whenever his detention or imprisonment had commenced, or had been ordered. Similarly, a person could not be subjected to cruel and unusual treatment or punishment after the Charter came into effect, even if it had been ordered pre-Charter. Sections 9 and 12 do not focus on the date of the order imposing imprisonment or punishment, but on the imprisonment or punishment itself, which in this case is yet to occur. I concluded, therefore, that ss. 9 and 12 of the Charter could apply in this case.

Reference can next be made to R. v. Langevin, 11 C.C.C. (3d) 336; 8 D.L.R. (4th) 485 which raised the issue of whether the dangerous offender provisions of the Criminal Code violated various provisions of the Charter. On September 12, 1980, after pleading guilty to rape, the accused was found to be a dangerous offender and sentenced to indeterminate detention pursuant to section 688 of the Criminal Code. On behalf of this court Lacourcière, J.A. held that the Charter did not reach back and affect the initial proceedings. However, because the validity of the sentence was based on the accused's continuing status as a dangerous offender, he held that the Court could determine whether that sentence violated any rights protected by the Charter. He stated, at 352 (D.L.R. 501):

We agree . .. that because the Charter came into force after the appellant was found to be a dangerous offender, the sections of the Charter invoked by the appellant have no application to the proceedings before Judge Carter and do not reach back and affect them: R. v. Antoine .. .

However, ... the appeal against the indeterminate sentence pursuant to s. 694 of the Code is properly before us. This sentence, in turn, is based on the finding that the appellant is a dangerous offender and this status of dangerous offender is a continuing status necessary for the validity of the sentence and the consequent detention. I conclude therefore that, on the appeal, the Court has jurisdiction to determine, as a question of law, whether the sentence, based on the continuing status, violates any right protected by the Charter.

Thus, although the accused's criminal liability was based on pre-Charter events, the application of the Charter to the accused's “continuing status” of dangerous offender was not retrospective.

The recent decision of the Supreme Court of Canada in R. v. Dubois, [1985] 2 S.C.R. 350; 23 D.L.R. (4th) 503 illustrates how an application of section 13 of the Charter may involve pre-Charter events, but is not thereby necessarily retrospective. At issue was whether, at a new trial granted by the Alberta Court of Appeal on grounds of misdirection to the jury at the initial trial, the Crown could introduce as evidence the accused's testimony given voluntarily at his first trial. The first trial was completed before the Charter came into force, but the second one, at which the accused's testimony was adduced, took place after. In response to the allegation of retrospective application of section 13, Lamer, J., on behalf of six of the seven members of the Court asserted, at 359 (D.L.R. 523):

In my view, s. 13 is not being given in this case a retrospective effect. As I have indicated earlier, s. 13 guarantees the right not to have a person’s previous testimony used to incriminate him or her in other proceedings. That right came into force on April 17, 1982, the date of the coming into force of the Charter. However, given the nature and purpose of the right, it inures to an individual at the moment an attempt is made to utilize previous testimony to incriminate him or her. The time at which the previous testimony was given is irrelevant for the purpose of determining who may or may not claim the benefit of s. 13. As of April 17, 1982, all persons acquired the right not to have evidence previously given used to incriminate them. The protection accorded by the right is related not to the moment the testimony is given, but to the moment at which an attempt is made to use that evidence in an incriminating fashion.

The sole dissenting judge in Dubois was Mcintyre, J. However, on this point he stated, at 376 (D.L.R. 511):

. . . I agree with my brother Lamer that there is no issue of retrospectivity in this case. All persons who come within the terms of s. 13 of the Charter acquired the right to its protection with the adoption of the Charter on April 17, 1982. The time at which the evidence in question was given is of no significance. Any protection from s. 13 will apply when it is sought to introduce the challenged evidence.

A number of recent cases concerning the application of section 15 of the Charter, which did not come into effect until April 17, 1985, are pertinent to this consideration. The earliest of these is that of this Court in Re McDonald and The Queen, supra. The question was whether section 15 would apply to a proceeding against a young person who was being tried in an ordinary court of criminal jurisdiction on charges of having committed four offences when, on April 1, 1985, the Young Offenders Act, S.C. 1980-81-82-83, c. 110 changed the definition of a “young person" from being “under 16" to “under 18”. The accused asked to be transferred to youth court to be dealt with under the new Act and argued that if he were not, his section 15 equality rights would be infringed. In holding that the application of section 15 of the Charter was entirely prospective, notwithstanding that the proceedings were commenced before April 17, 1985, Morden, J.A. stated, at 762:

The respondent does not seek what he submits is a retroactive or retrospective application of s. 15, that is, he does not ask to have the steps taken in the proceedings against him before April 17, 1985, set aside or declared void. Rather he says that his submission involves an entirely prospective application of the Charter. He seeks only those benefits of the Young Offenders Act that would be applicable to the proceedings from April 17, 1985, forward. He submits that regardless of what the case was before April 17, 1985, there is now a situation of inequality that infringes s. 15 and that this situation requires a remedy. I believe that this argument is sustainable on the authorities. . . .

Although he went on, at 763, to say that even if the Charter involved retrospective application, its status would have led him to consider “the possible application of the Charter to the new facts of this case", this was obiter because the decision proceeded on the basis that section 15 was prospective and, at 764-65 he asserted that “it is logical and fair that people should be dealt with in accordance with the law in effect at the time of their acts". Both Craig, J.A. for the British Columbia Court of Appeal in R. v. Thorburn (unreported, released February 6, 1986) at 9 and Morden, J.A. himself, in R. v. Lucas, R. v. Neely, supra at 13-14 and 16-17 so viewed his earlier statements in McDonald. Thus, he provided the following summation at 13-14:

I think that it is a basic contrast between Konechny, Langevin and McDonald, on the one hand, and the cases before us, on the other, that while the sentences in the first-mentioned cases against which it was sought to apply the Charter (in McDonald there were other facts involved than just the sentence but I think that it is the sentence feature that is most helpful to the respondents in this case) may have been substantive matters related to pre-Charter events, the Charter was sought to be applied prospectively only, in the sense that it was not sought to reach back and reverse the liability which clearly existed on the basis of the facts and the law in existence at the time the offences were committed — assuming, with respect to McDonald, that the case against the accused were proven. This is what is sought in the present cases — assuming, once again, that the cases are proven. [Emphasis added.]

He went on to deal with the argument of unfairness during a transitional period in these terms, at 14-16:

In McDonald it was observed that it is logical and fair that people should be dealt with in accordance with the law in effect at the time of their acts. ... In this respect I have in mind those persons who committed the same offence that the respondents are alleged to have committed at about the same time but whose proceedings, for one reason or another, were completed before s. 15 came into force. To give effect to the respondents' contentions on this point would indicate that these people would be better off if, somehow or other, the completion of their cases could have been delayed until April 17, 1985 . . . 1 think that this consideration bears squarely on the fairness of the application of the traditional rules to the retrospectivity issue in these cases. [Emphasis added.]

Thus, he refused to apply section 15 of the Charter to a charge under subsection 146(1) of the Criminal Code for having had sexual relations with a female under 14 years of age at a time prior to the coming into effect of section 15.

The Thorburn case, supra, concerned the same reliance on section 15 of the Charter with respect to the same section of the Criminal Code, as well as section 157 — committing a gross act of indecency. For the Court, Craig, J.A. specifically adopted one of the earliest judicial pronouncements on retrospectivity, namely that of the Honourable Judge Borins in R. v. Dickson and Corman (1983), 40 O.R. (2d) 366; 3 C.C.C. (3d) 23 when he stated, at 374 (C.C.C. 32):

... [T]he Constitution has no application to criminal conduct engaged in and completed before the Constitution was proclaimed in force. The Constitution cannot be applied to support a declaration that the law pursuant to which an offence is alleged to have been committed was inconsistent with the provisions of the Constitution when the offence was completed before the Constitution was in force.

For other brief references asserting that section 15 does not have retrospective application see decisions of this Court in R. v. Graham (unreported, released June 17, 1985); R. v. Quesnel (1985), 53 O.R. (2d) 338; 24 C.C.C. (3d) 78 and R. v. Seo (1986), 25 C.C.C. (3d) 385.

Another recent section 15 case that might appear, at first glance, to apply a different interpretation, but I believe does not, is that of the Nova Scotia Court of Appeal in R. v. Killen (1986), 70 N.S.R. (2d) 278. At issue was the question whether the fact that subsection 234(2) of the Criminal Code (which permits the court before whom a person is found guilty of the charge of impaired driving under subsection 234(1) to subject such person to a probation order, including a condition of attendance for curative treatment, instead of conviction and sentence), was not proclaimed in force in Nova Scotia, whereas it had been in other provinces, amounted to a contravention of section 15 of the Charter. The offence and the charge occurred before April 17, 1985, but the trial and the disposition as to what to do with the accused after conviction, took place after. Thus, the Court could consider section 15 because it was raised in relation to the disposition by the court, which occurred after section 15 came into effect. In this event section 15 was held not to have been contravened.

Thus, I would sum up the cases reviewed here as being consistent with a proposition that one applies the law in force at the time when the Act that is alleged to be in contravention of a Charter right or freedom occurs. Therefore, section 8 of the Charter cannot be applied to a search or seizure which occurred before the coming into effect of the Charter. That is the case in both sets of appeals. Thus, I find that neither seizure is contrary to section 8 of the Charter. This is consistent with this Court's conclusion in R. v. Pica, supra.

However, although that determines the Dzagic appeals, there is a further argument to consider in the James, Kirsten and Rosenthal appeals, because it was not necessary to rely on Charter section 8 to decide that the seizures of concern in those appeals were unlawful and unreasonable. The trial judge so found on the basis of the law in force at the time the seizures took place and I accept those findings. What this argument, in essence, suggests is that Charter section 24 is not being applied retrospectively if relief is given at a post-Charter trial on the basis that evidence was unlawfully and unreasonably obtained according to the law in force at the time the seizure occurred. It would be very tempting to accept this argument. However, that is not what subsection 24(1) provides. It applies at the behest of “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied” (emphasis added). As shown above, that was not the case in either set of appeals. Can it be said that subsection 24(2) has a different basis of operation, namely an infringement for denial of “‘any rights or freedoms guaranteed by this Charter"? I do not see how there can be a different basis for the application of subsection 24(2). Subsection (2) explicitly applies only “in proceedings under subsection (1)”. There cannot be a different basis for the operation of the two subsections in terms of the right or freedom under the Charter allegedly contravened.

I agree on this point with the summation of Hartt, J. in R. v. Burnett et al., [1985] 2 C.T.C. 227 at 243:

On a plain and commonsense reading of subsection 24(2), the relevant time of the infringement of a Charter right is at the time the evidence was obtained. In this case the evidence was obtained at the time of the seizures in 1975 and 1977. In the context of a pre-Charter search and seizure, section 8 can be viewed as having been infringed at that time only if section 8 is given retrospective effect.

Counsel for the applicants submitted that subsection 24(2) merely provides a new remedy for the breach of common law rights which have subsequently been guaranteed by the Charter. It was urged that this approach is indicated by the use in section 24 of the phrase “guaranteed by this Charter” rather than the phrase “created by this Charter”. I do not agree that the use of the word “guaranteed” has the significance contended. It seems evident that the word “created” could have been substituted without incurring the danger of limiting the applicability of section 24 to the Charter rights that had no prior existence in statutory or common law. In my view, the pivotal concern of subsection 24(2) is the manner in which evidence is obtained: it is only the violation of constitutionally entrenched rights that gives rise to the remedy in subsection 24(2).

Accordingly, I am of the opinion that subsection 24(2) cannot apply where evidence was obtained pursuant to a search and seizure effected prior to the enactment of the Charter.

To this point I have not referred to the one case in this Court that is relied upon as the basis for applying subsection 24(2) of the Charter to exclude, a post-Charter proceeding, pre-Charter evidence which is illegally obtained according to the law of the time, namely, the Chapman case, supra.

The issue involved an appeal from an order quashing a search warrant and directing that all objects seized pursuant to the defective warrant be returned forthwith. The question on appeal was whether there was any discretion in the court to order the return of articles which the Crown alleged were required as evidence in a subsequent criminal proceeding. The warrant had been executed on February 10, 1982 and charges were laid on February 11, 1982. The application to quash the warrant was brought in March, 1983. Delivering the judgment of the Court, MacKinnon, A.C.J.O., held, first, that jurisdiction to order the return of the seized items was based on Bergeron et al. v. Deschamps et al., [1978] 1 S.C.R. 243; 73 D.L.R. (3d) 765. At 72 (C.C.C. 8), he affirmed:

. . . [P]rior to the passage of the Canadian Charter of Rights and Freedoms there was discretion in the court to determine, once a search warrant was quashed, whether articles illegally seized should be retained. Usually it was a sufficient “justification” for the court to exercise its discretion in favour of the Crown's retention of the articles if they were said to be needed for the prosecution of an offence charged.

He then went on to say that with the passage of the Charter and, in particular, sections 8 and 24 thereof, the order made by the motions court judge could equally be considered to have been made under subsection 24(1). He discussed the retrospectivity issue as follows at 72 (C.C.C. 8):

It is true, in the instant case, that the article in issue was seized prior to the enactment of the Charter. However, as the Crown seeks to use it now as evidence, the invocation of ss. 8 and 24, in light of all the circumstances, is not to give the Charter or the sections retrospective effect. To consider, in relation to s. 24, the circumstances surrounding the execution of the search warrant, and the subsequent condemned activities cited by the motions court judge which took place after the enactment of the Charter, is not, in my view, to give retrospective effect to the Charter. [Emphasis added.]

In considering Chapman, one has to keep in mind that MacKinnon, A.C.J.O., was concerned with a pre-Charter search, unlawful according to pre-Charter law, post-Charter illegalities and an order for the return of an article made pursuant to a discretion provided for under pre-charter law. That discretion applied to quashed search warrants. It was not available more widely to illegally-obtained evidence generally. This Court tried to give a wider discretion for exclusion of illegally-obtained evidence in R. v. Wray, [1970] 3 C.C.C. 122. This was disavowed by the Supreme Court of Canada in [1970], 4 C.C.C. 1. Only that Court can now give a wider application to exclusion of evidence in an instance where the Charter does not apply, whether because of time or any other reason.

Blackwoods Beverages, supra, is the other case relied upon to argue that the illegally-obtained evidence should be excluded in a post-Charter proceeding. In that case the Crown appealed from an order granting an application for a declaration of the applicants’ rights under the Charter and for an order that documents seized under the purported authority of subsec- tions 10(1) and (3) of the Combines Investigation Act, R.S.C. 1970, c. C-23, and copies of these documents, be returned to the owner and excluded from admission into evidence at the preliminary inquiry or at any subsequent proceedings. On appeal, Monnin, C.J.M. observed, at 164 (C.P.C. 299):

I note firstly that the seizures were effected in 1977 and 1981, thus before the Charter. When effected, these seizures were lawful. By virtue of the Charter they are now illegal.

In this he acknowledged that the Supreme Court of Canada, in Southam Inc. v. Hunter et al., supra, had held that subsections 10(1) and (3) of the Combines Investigation Act were invalid as being in contravention of section 8 of the Charter. However, for one thing, the search and seizure in Southam v. Hunter at al. occurred after the Charter came into effect and, for another, in the case before him, Monnin, C.J.M. went on to hold that the application and order were premature. Although O'Sullivan, J.A. made a brief reference to the effect that "[t]he continued detention of documents seized has been rendered unlawful by the Charter" he, too, agreed that the appeal should be allowed because “‘it is undesirable and unreasonable to encourage interlocutory proceedings on matters of evidence" (p. 180). Only Matas, J.A. applied the Chapman case to the effect that "[i]t would not be giving retrospective effect to section 8 of the Charter to provide a remedy . . . for the continued infringement of . . . rights under the Charter” (page 179; C.P.C. 315). For reasons given earlier, although I sympathize with the motivation for that point of view, I do not agree that it correctly describes the authorities.

I would just add one observation. I would reach the same conclusion that I have, even if I were to apply Professor Black’s suggestion in his U.B.C. Law Review Charter Edition article, supra, that new Charter rights and remedies be applied not on the basis of the old rules regarding statutory interpretation ('the rule oriented approach”), but rather on the consequences of applying the particular provision retrospectively (the "policy oriented approach"). It is not an effective way to promote respect for Charter rights to apply new effects to actions taken before the Charter came into effect. The object of the Charter is not to make the obtaining of evidence or the getting of a conviction easier or more difficult, it is not intended to help people get acquittals or the Crown to succeed in its prosecutions, but rather to induce legislatures and government agents to respect the rights and freedoms set out therein, with notice as to the consequences of invalidity that follow any contrary action. From that point of view, it is important that actions be determined by the law, including the Constitution, in effect at the time of the action.

Accordingly, I would grant leave to appeal but dismiss the appeals by Steven and Dorothy Dzagic and I would grant leave to appeal and allow the appeals by the Attorney General for Canada against the acquittals of James, Kirsten and Rosenthal and refer the matters therein to the summary conviction court to be dealt with in accordance with the determination in this appeal.

Order accordingly.