Pinard,
J.:—By
their
action,
the
plaintiffs
are
seeking
a
declaration
that
certain
requirements
issued
by
the
Minister
of
National
Revenue
pursuant
to
section
231.2
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1986,
c.
6)
(the
"Act")
and
the
authorizing
section
231.2
itself
are
of
no
force
or
effect,
pursuant
to
section
52
of
the
Canadian
Charter
of
Rights
and
Freedoms,
on
the
grounds
that
they
are
inconsistent
with
sections
7,
8
and
11
of
the
Charter.
At
trial,
however,
the
plaintiffs
deliberately
ignored
the
ground
founded
on
section
11
of
the
Charter.
A.
The
Facts
The
following
relevant
facts
have
been
either
admitted
in
the
pleadings
or
otherwise
established
by
the
evidence:
1.
On
or
before
April
30
of
each
of
the
1985
to
1989
years,
the
plaintiffs
duly
filed
their
income
tax
returns
for
the
previous
taxation
year
with
the
Minister
of
National
Revenue;
2.
Further
to
the
filing
of
the
plaintiffs’
income
tax
returns
for
the
1984
to
1987
taxation
years,
the
Minister
issued
notices
of
assessment
against
the
taxpayers
with
respect
to
their
income
tax
returns
pursuant
to
the
various
relevant
sections
of
the
Income
Tax
Act;
3.
The
plaintiffs
did
not
object
to
any
of
the
assessments
issued
by
the
Minister
with
respect
to
the
1984
to
1987
taxation
years;
4,
Since
January
1988,
Revenue
Canada
has
been
investigating
the
income
tax
liability
of
the
company
Les
Vins
Corelli
Inc.
(Corelli"),
a
company
apparently
involved
in
the
importation
of
wine;
5.
In
order
to
attempt
to
verify
the
transactions
declared
by
Corelli,
recourse
has
been
had
to
the
records
of
the
plaintiff
Vincenzo
Morena,
who
was
a
shareholder
in
Corelli
during
the
tax
years
investigated;
6.
In
addition,
Italmosto
Ltée
and
Les
Constructions
Tony
Messino
Inc.,
two
companies
in
which
the
plaintiffs
held
interests,
were
at
that
time
the
subjects
of
inquiries
by
the
Department
of
National
Revenue,
Taxation;
7.
On
or
about
March
10,
1989,
the
plaintiffs
received
letters
signed
by
an
officer
of
the
Special
Investigation
Division,
Department
of
National
Revenue,
Taxation;
8.
One
of
the
main
responsibilities
of
the
Special
Investigation
Division
of
the
Department
of
National
Revenue,
Taxation,
is
to
investigate
significant
cases
of
suspected
tax
evasion;
however,
this
is
not
this
Division's
sole
function
as
it
is
also
involved,
in
co-operation
with
the
RCMP,
in
the
audit
of
tax
returns
in
order
to
determine
taxpayer's
tax
liability
over
$100,000;
9.
The
letters
required,
inter
alia,
that
the
plaintiffs
provide
information
and
produce
certain
documents
within
thirty
(30)
days
from
the
date
of
delivery
thereof.
More
specifically,
the
letters
required
each
of
the
plaintiffs
to
provide:
(a)
signed
statements
of
his
(or
her)
assets
and
liabilities
as
at
December
31
of
each
of
the
1983
to
1988
taxation
years
with
assets
shown
at
cost;
and
(b)
reconciliations
of
capital
for
the
1984
to
1988
taxation
years
together
with
detailed
cost
of
personal
expenditures
for
these
years;
10.
The
plaintiffs
did
not
provide
the
information
requested
by
the
letters;
11.
On
or
about
May
8,
1989,
formal
requirements
for
the
same
information,
allegedly
made
pursuant
to
paragraph
231.2(1)(a)
of
the
Act,
were
served
by
registered
mail
on
the
plaintiffs.
The
requirements
were
signed
by
Réjean
Doré,
who
described
himself
as
Director—Taxation,
Montréal
District
Office
of
the
Department
of
National
Revenue,
Taxation;
12.
Such
required
information
was
not
otherwise
required
by
the
Income
Tax
Act
to
be
recorded
or
kept;
13.
At
the
time
the
requirements
for
information
were
made,
no
evidence
of
any
criminal
offence
by
the
plaintiffs
had
been
found;
hence,
the
transfer
of
their
cases
to
the
subdivision,
within
the
Special
Investigation
Division
of
the
Department
of
National
Revenue,
Taxation,
which
was
involved,
in
cooperation
with
the
RCMP,
in
the
audit
of
tax
returns
for
tax
liability
purpose.
14.
On
or
about
June
27,
1989,
the
plaintiffs
instituted
the
present
declaratory
action
challenging
the
validity
of
the
aforementioned
requirements
for
information.
B.
The
Issues
The
issues
arising
in
this
action
are
as
follows:
1.
Are
the
impugned
requirements
for
information
authorized
by
the
Income
Tax
Act?
2.
If
the
answer
to
question
1
is
affirmative,
are
subsection
231.2(1)
of
the
Income
Tax
Act
and
the
requirements
for
information
issued
on
the
authority
of
that
provision
inconsistent
with
Articles
7
and/or
8
of
the
Canadian
Charter
of
Rights
and
Freedoms^.
C.
Analysis
Section
231.2
of
the
Income
Tax
Act
states
as
follows:
231.2
(1)
Requirement
to
provide
documents
or
information.—Notwithstanding
any
other
provision
of
this
Act,
the
Minister
may,
subject
to
subsection
(2),
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
by
notice
served
personally
or
by
registered
or
certified
mail,
require
that
any
person
provide,
within
such
reasonable
time
as
is
stipulated
in
the
notice,
(a)
any
information
or
additional
information,
including
a
return
of
income
or
a
supplementary
return;
or
(b)
any
document.
(2)
Unnamed
persons.—The
Minister
shall
not
impose
on
any
person
(in
this
section
referred
to
as
a
"third
party")
a
requirement
under
subsection
(1)
to
provide
information
or
any
document
relating
to
one
or
more
unnamed
persons
unless
he
first
obtains
the
authorization
of
a
judge
under
subsection
(3).
(3)
Judicial
authorization.—On
ex
parte
application
by
the
Minister,
a
judge
may,
subject
to
such
conditions
as
he
considers
appropriate,
authorize
the
Minister
to
impose
on
a
third
party
a
requirement
under
subsection
(1)
relating
to
an
unnamed
person
or
more
than
one
unnamed
person
(in
this
section
referred
to
as
the
"
roup”)
where
the
judge
is
satisfied
by
information
on
oath
that
(a)
the
person
or
group
is
ascertainable;
(b)
the
requirement
is
made
to
verify
compliance
by
the
person
or
persons
in
the
group
with
any
duty
or
obligation
under
this
Act;
(c)
it
is
reasonable
to
expect,
based
on
any
grounds,
including
information
(statistical
or
otherwise)
or
past
experience
relating
to
the
group
or
any
other
persons,
that
the
person
or
any
person
in
the
group
may
have
failed
or
may
be
likely
to
fail
to
provide
information
that
is
sought
pursuant
to
the
requirement
or
to
otherwise
comply
with
this
Act;
and
(d)
the
information
or
document
is
not
otherwise
more
readily
available.
(4)
Service
of
authorization.—Where
an
authorization
is
granted
under
subsection
(3),
the
authorization
shall
be
served
together
with
the
notice
referred
to
in
subsection
(1).
(5)
Review
of
authorization.—Where
an
authorization
is
granted
under
subsection
(3),
a
third
party
on
whom
a
notice
is
served
under
subsection
(1)
may,
within
15
days
after
the
service
of
the
notice,
apply
to
the
judge
who
granted
the
authorization
or,
where
the
judge
is
unable
to
act,
to
another
judge
of
the
same
court
for
a
review
of
the
authorization.
(6)
Powers
on
review.—On
hearing
an
application
under
subsection
(5),
a
judge
may
cancel
the
authorization
previously
granted
if
he
is
not
then
satisfied
that
the
conditions
in
paragraph
(3)(a)
to
(d)
have
been
met
and
he
may
confirm
or
vary
the
authorization
if
he
is
satisfied
that
those
conditions
have
been
met.
(7)
Additional
remedy.—Where
a
person
is
found
guilty
of
an
offence
under
subsection
238(2)
for
failing
to
comply
with
a
requirement
under
subsection
(1),
the
court
may
make
such
order
as
it
deems
proper
in
order
to
enforce
compliance
with
the
requirement.
The
plaintiffs
first
submit
that
the
impugned
requirements
for
information
were
not
authorized
by
the
Income
Tax
Act
since
the
information
which
the
Minister
required
the
plaintiffs
to
produce,
such
as
personal
assets,
liabilities
and/or
expenditures,
was
not
required
by
the
Act
to
be
recorded
or
kept.
I
cannot
accept
such
submission.
In
the
Supreme
Court
of
Canada
case
McKinlay
Transport
Ltd.
v.
Canada,
[1990]
1
S.C.R.
627;
[1990]
2
C.T.C.
103;
90
D.T.C.
6243,
at
109
(D.T.C.
6247;
S.C.R.
639),
Madam
Justice
Wilson
recalled
the
proper
construction
to
be
given
to
subsection
231(3)
of
the
Income
Tax
Act‘,
which
is
the
predecessor
to
subsection
231.2(1):
This
Court
had
occasion
to
consider
subsection
231(3)
of
the
Act
in
James
Richardson
&
Sons,
Ltd.
v.
M.N.R.,
supra
[[1984]
1
S.C.R.
614;
[1984]
C.T.C.
345;
84
D.T.C.
6325].
It
noted
that
the
wording
of
the
subsection
was,
on
its
face,
extremely
broad.
The
Court
found,
however,
after
reviewing
its
earlier
decision
in
Canadian
Bank
of
Commerce
v.
Attorney
General
of
Canada,
[1962]
S.C.R.
729;
62
D.T.C.
1236,
that
once
the
appropriate
rules
of
statutory
interpretation
had
been
Subsection
231(3)
stated:
231.
(3)
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.
applied
to
the
subsection,
it
was
not
to
be
construed
so
broadly.
The
Court
found
at
page
350
(D.T.C.
6329;
S.C.R.
623)
that:
(a)
the
test
of
whether
the
Minister
is
acting
for
a
purpose
specified
in
the
Act
is
an
objective
one
and
has
to
be
decided
on
the
proper
interpretation
of
the
subsection
and
its
application
to
the
circumstances
disclosed;
(b)
the
obtaining
of
information
relevant
to
the
tax
liability
of
some
specific
person
or
persons
whose
liability
to
tax
is
under
investigation
is
a
purpose
related
to
the
administration
or
enforcement
of
the
Act;
(c)
it
is
not
necessary
that
the
person
from
whom
the
information
is
sought
be
one
whose
liability
to
tax
is
under
investigation;
(d)
the
fact
that
the
giving
of
the
information
may
disclose
private
transactions
involving
persons
who
are
not
under
investigation
and
may
not
be
liable
to
tax
does
not
invalidate
the
requirement.
In
my
view,
the
impugned
requirements
for
information
are
totally
consistent
with
the
latter
narrower
construction
of
subsection
231(3),
which
is
essentially
the
same
as
current
subsection
231.2(1)
of
the
Act.
The
plaintiffs
further
submit
that
section
231.2
of
the
Income
Tax
Act
and
the
requirements
for
information
issued
on
the
authority
of
that
provision
are
inconsistent
with
Articles
7
and
8
of
the
Charter
and,
consequently,
the
requirements
for
information
ought
to
be
set
aside.
This
submission
is
strongly
disputed
by
the
defendants
who
did
not
consider
it
necessary
to
adduce
any
evidence
with
respect
to
section
1
of
the
Charter.
Sections
1,
7
and
8
of
the
Charter
provide:
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.
7.
Everyone
has
the
right
to
life,
liberty
and
security
of
the
person
and
the
right
not
to
be
deprived
thereof
except
in
accordance
with
the
principles
of
fundamental
justice.
8.
Everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure.
Dealing
first
with
section
8
of
the
Charter,
it
would
seem
to
me
that
the
Supreme
Court
of
Canada,
in
McKinlay
Transport
Ltd.,
supra,
has
fully
decided
the
issue.
That
case
raised
specifically
the
question
of
the
constitutional
validity
of
subsection
231(3)
of
the
Income
Tax
Act
in
light
of
section
8
of
the
Charter.
As
I
indicated
earlier,
subsection
231(3)
is
the
predecessor
to
subsection
231.2(1)
and
both
provisions
are
essentially
the
same.
The
five
Supreme
Court
of
Canada
Justices
involved
in
the
decision
concluded
that
the
provision
did
not
violate
section
8
of
the
Charter.
First,
at
page
110
(D.T.C.
6247-48;
S.C.R.
641),
Madam
Justice
Wilson
recalled
that
subsection
231(3)
is
not
criminal
or
quasi-criminal
legislation;
Section
231(3)
is
not
criminal
or
quasi-criminal
legislation.
The
Income
Tax
Act
is
essentially
a
regulatory
statute
since
it
controls
the
manner
in
which
income
tax
is
calculated
and
collected.
This
Court
pointed
out
in
R.
v.
Grimwood,
[1987]
2
S.C.R.
755;
[1988]
1
C.T.C.
44;
88
D.T.C.
6001,
at
page
44
(D.T.C.
6001;
S.C.R.
756),
that"
the
purpose
of
ss.
231(3)
and
238(2),
when
read
together,
is
not
to
penalize
criminal
conduct
but
to
enforce
compliance
with
the
Act”.
Then
Wilson,
J.
expressed
the
view
(shared
by
three
of
her
four
colleagues)
that
the
application
of
subsection
231(3)
constituted
"a
seizure”
since
it
infringed
on
the
taxpayer's
expectation
of
privacy.
At
pages
110-11
(D.T.C.
6248;
S.C.R.
642),
she
stated:
First,
subsection
231(3),
even
construed
narrowly
in
accordance
with
prior
authority,
envisages
the
compelled
production
of
a
wide
array
of
documents
and
not
simply
those
which
the
state
requires
the
taxpayer
to
prepare
and
maintain
under
the
legislation.
Second,
the
legislation
contemplates
that
parties
who
are
not
the
subject
of
an
investigation
or
audit
can
be
compelled
to
produce
documents
relating
to
another
taxpayer
who
is
the
subject
of
such
investigation
or
audit.
Thus,
compelled
production
reaches
beyond
the
strict
filing
and
maintenance
requirements
of
the
Act
and
may
well
extend
to
information
and
documents
in
which
the
taxpayer
has
a
privacy
interest
in
need
of
protection
under
section
8
of
the
Charter
although
it
may
not
be
as
vital
an
interest
as
that
obtaining
in
a
criminal
or
quasicriminal
context.
I
would
therefore
conclude
that
the
application
of
subsection
231(3)
of
the
Income
Tax
Act
to
the
appellants
constitutes
a
"seizure"
since
it
infringes
on
their
expectations
of
privacy.
Finally,
Wilson,
J.
considered
as
follows
the
relevant
question
of
reasonableness,
at
page
11
(D.T.C.
6248;
S.C.R.
642-43):
It
remains
to
be
determined,
however,
whether
the
state's
intrusion
on
that
privacy
interest
is
unreasonable
or,
to
put
it
another
way,
whether
it
violates
the
taxpayers’
reasonable
expectation
of
privacy.
In
Hunter,
Dickson,
J.
set
forth
several
criteria
which
had
to
be
met
in
order
that
a
search
be
reasonable.
I
summarized
these
criteria
in
Thomson
[Thomson
Newspapers
v.
Canada
(Director
of
Investigation
and
Research,
Restrictive
Trade
Practices
Commission,
[1990]
1
S.C.R.
425;
67
D.L.R.
(4th)
161]
(D.L.R.
177):
(a)
a
system
of
prior
authorization,
by
an
entirely
neutral
and
impartial
arbiter
who
is
capable
of
acting
judicially
in
balancing
the
interests
of
the
State
against
those
of
the
individual;
(b)
a
requirement
that
the
impartial
arbiter
must
satisfy
himself
that
the
person
seeking
the
authorization
has
reasonable
grounds,
established
under
oath,
to
believe
that
an
offence
has
been
committed;
(c)
a
requirement
that
the
impartial
arbiter
must
satisfy
himself
that
the
person
seeking
the
authorization
has
reasonable
grounds
to
believe
that
something
which
will
afford
evidence
of
the
particular
offence
under
investigation
will
be
recovered;
and
(d)
a
requirement
that
the
only
documents
which
are
authorized
to
be
seized
are
those
which
are
strictly
relevant
to
the
offence
under
investigation.
It
is
important
to
note
that
these
criteria
were
enunciated
in
the
context
of
an
appeal
concerning
the
validity
of
a
section
which
was,
in
essence,
criminal
or
quasi-criminal
in
nature.
[Emphasis
added.]
and
at
pages
113-14
(D.T.C.
6250;
S.C.R.
648-50):
At
the
beginning
of
my
analysis
I
noted
that
the
Income
Tax
Act
was
based
on
the
principle
of
self-reporting
and
self-assessment.
The
Act
could
have
provided
that
each
taxpayer
submit
all
his
or
her
records
to
the
Minister
and
his
officials
so
that
they
might
make
the
calculations
necessary
for
determining
each
person's
taxable
income.
The
legislation
does
not
so
provide,
no
doubt
because
it
would
be
extremely
expensive
and
cumbersome
to
operate
such
a
system.
However,
a
selfreporting
system
has
its
drawbacks.
Chief
among
these
is
that
it
depends
for
its
success
upon
the
taxpayers'
honesty
and
integrity
in
preparing
their
returns.
While
most
taxpayers
undoubtedly
respect
and
comply
with
the
system,
the
facts
of
life
are
that
certain
persons
will
attempt
to
take
advantage
of
the
system
and
avoid
their
full
tax
liability.
Accordingly,
the
Minister
of
National
Revenue
must
be
given
broad
powers
in
supervising
this
regulatory
scheme
to
audit
taxpayers'
returns
and
inspect
all
records
which
may
be
relevant
to
the
preparation
of
these
returns.
The
Minister
must
be
capable
of
exercising
these
powers
whether
or
not
he
has
reasonable
grounds
for
believing
that
a
particular
taxpayer
has
breached
the
Act.
Often
it
will
be
impossible
to
determine
from
the
face
of
the
return
whether
any
impropriety
has
occurred
in
its
preparation.
A
spot
check
or
a
system
of
random
monitoring
may
be
the
only
way
in
which
the
integrity
of
the
tax
system
can
be
maintained.
If
this
is
the
case,
and
I
believe
that
it
is,
then
it
is
evident
that
the
Hunter
criteria
are
ill-suited
to
determine
whether
a
seizure
under
subsection
231(3)
of
the
Income
Tax
Act
is
reasonable.
The
regulatory
nature
of
the
legislation
and
the
scheme
enacted
require
otherwise.
The
need
for
random
monitoring
is
incompatible
with
the
requirement
in
Hunter
that
the
person
seeking
authorization
for
a
search
or
seizure
have
reasonable
and
probable
grounds,
established
under
oath,
to
believe
that
an
offence
has
been
committed.
If
this
Hunter
criterion
is
inapplicable,
then
so
too
must
the
remaining
Hunter
criteria
since
they
all
depend
for
their
vitality
upon
the
need
to
establish
reasonable
and
probable
grounds.
For
example,
there
is
no
need
for
an
impartial
arbiter
capable
of
acting
judicially
since
his
central
role
under
Hunter
is
to
ensure
that
the
person
seeking
the
authorization
has
reasonable
and
probable
grounds
to
believe
that
a
particular
offence
has
been
committed,
that
there
are
reasonable
and
probable
grounds
to
believe
that
the
authorization
will
turn
up
something
relating
to
that
particular
offence,
and
that
the
authorization
only
goes
so
far
as
to
allow
the
seizure
of
documents
relevant
to
that
particular
offence.
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.
A
taxpayer's
privacy
interest
with
regard
to
these
documents
vis-a-vis
the
Minister
is
relatively
low.
The
Minister
has
no
way
of
knowing
whether
certain
records
are
relevant
until
he
has
had
an
opportunity
to
examine
them.
At
the
same
time,
the
taxpayer's
privacy
interest
is
protected
as
much
as
possible
since
section
241
of
the
Act
protects
the
taxpayer
from
disclosure
of
his
records
or
the
information
contained
therein
to
other
persons
or
agencies.
As
did
Madam
Justice
Wilson
in
that
case,
with
respect
to
the
seizure
contemplated
by
subsection
231(3)
of
the
Income
Tax
Act,
I
must
conclude
that
the
similar
seizure
contemplated
by
subsection
231.2(1)
is
reasonable
and
does
not
violate
section
8
of
the
Charter.
In
so
doing,
I
see
no
contradiction
with
an
even
more
recent
decision
by
the
Supreme
Court
of
Canada,
in
Knox
Contracting
Ltd.
v.
Canada,
[1990]
2
C.T.C.
262;
90
D.T.C.
6447,
where
it
was
decided
that
a
right
of
appeal
cannot
be
founded
upon
the
provincial
Judicature
Act,
which
is
concerned
with
civil
procedures,
because
sections
231.3
and
239
of
the
Income
Tax
Act
constitute
an
exercise
of
the
criminal
law
jurisdiction.
Indeed,
Madam
Justice
Wilson
herself
supported
that
view,
which
is
obviously
consistent
with
what
she
expressed
earlier
as
follows
in
McKinlay,
supra,
at
page
114
(D.T.C.
6251;
S.C.R.
649):
This
is
not
to
say
that
any
and
all
forms
of
search
and
seizure
under
the
Income
Tax
Act
are
valid.
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.
The
reason
for
this
is
that,
while
a
taxpayer
may
have
little
expectation
of
privacy
in
relation
to
his
business
records
relevant
to
the
determination
of
his
tax
liability,
he
has
a
significant
privacy
interest
in
the
inviolability
of
his
home.
Turning
now
to
section
7
of
the
Charter,
which
was
not
discussed
in
McKinlay,
supra,
it
is
clear
that
the
provision
confers
upon
everyone
the
right
to
life,
liberty
and
security
of
the
person,
and
the
right
not
to
be
deprived
thereof
except
in
accordance
with
the
principles
of
fundamental
justice.
It
is
now
generally
accepted
that
the
rights
which
are
enumerated
in
Articles
8
to
14
of
the
Charter
address
specific
deprivations
of
the
more
general
rights
conferred
by
Article
7,
and
are
illustrative
of
the
parameters
of
these
rights.
Accordingly,
a
legislative
provision
which
violates
one
or
more
of
the
rights
mentioned
in
Articles
8
to
14
of
the
Charter
must
also
offend
the
general
right
conferred
by
Article
7
to
life,
liberty
and
security
of
the
person.
Conversely,
specific
rights
guaranteed
by
Articles
8
to
14
do
not
limit
the
scope
of
Article
7.
(See
Re
B.C.
Motor
Vehicle
Act,
[1985]
2
S.C.R.
486,
at
502-503;
R.
v.
Lyons,
[1987]
2
S.C.R.
309;
44
D.L.R.
(4th)
193,
at
354
(D.L.R.
243);
R.
v.
Wigglesworth,
[1987]
2
S.C.R.
541;
45
D.L.R.
(4th)
235,
at
562
(D.L.R.
253);
and
Thomson
Newspapers,
supra,
at
442
(D.L.R.
203).)
I
also
recognize
that
the
right
to
remain
silent
is
a
basic
tenet
of
our
legal
system
which
is
protected,
inter
alia,
by
Article
7
of
the
Charter.
In
R.
v.
Chambers,
S.C.C.,
October
18,
1990
(as
yet
unreported),
Mr.
Justice
Cory,
at
pages
24
et
seq.,
laid
down
the
modern
view
of
the
rule:
It
is
now
well
recognized
that
there
is
a
right
to
silence
which
can
properly
be
exercised
by
an
accused
person
in
the
investigative
stages
of
the
proceedings.
The
basis
of
the
right
was
enunciated
by
Lamer
J.,
as
he
then
was,
in
his
dissenting
reasons
in
Rothman
v.
The
Queen,
[1981]
1
S.C.R.
640,
at
p.
683,
in
these
words:
In
Canada
the
right
of
a
suspect
not
to
say
anything
to
the
police
is
not
the
result
of
a
right
of
no
self-crimination
but
is
merely
the
exercise
by
him
of
the
general
right
enjoyed
in
this
country
by
anyone
to
do
whatever
one
pleases,
saying
what
one
pleases
or
choosing
not
to
say
certain
things,
unless
obliged
to
do
otherwise
by
law.
It
is
because
no
law
says
that
a
suspect,
save
in
certain
circumstances,
must
say
anything
to
the
police
that
we
say
that
he
has
the
right
to
remain
silent,
which
is
a
positive
way
of
explaining
that
there
is
on
his
part
no
legal
obligation
to
do
otherwise.
The
importance
of
the
principle
was
emphasized
by
Martin
J.A.
in
R.
v.
Symonds
(1983),
9
C.C.C.
(3d)
225
(Ont.
C.A.),
at
p.
227:
It
is
fundamental
that
a
person
charged
with
a
criminal
offence
has
the
right
to
remain
silent
and
a
jury
is
not
entitled
to
draw
any
inference
against
an
accused
because
he
chooses
to
exercise
that
right.
Further
the
right
to
silence
has
now
been
recognized
as
a
basic
tenet
of
our
legal
system
and
as
such
is
a
right
protected
by
the
Canadian
Charter
of
Rights
and
Freedoms.
As
a
basic
tenet
of
our
law
it
falls
within
the
ambit
of
s.
7
of
the
Charter.
See
R.
v.
Woolley
(1988),
40
C.C.C.
(3d)
531
(Ont.
C.A.),
and
particularly
Hebert
v.
The
Queen,
[1990]
2
S.C.R.
151.
It
follows
that
an
accused
person
has
the
right
to
remain
silent
at
the
investigation
stage
as
well
as
at
the
trial.
It
is
clear,
however,
from
that
judgment
and
the
rest
of
the
relevant
jurisprudence,
that
the
right
to
remain
silent
cannot
exist
if
there
is
not
a
criminal
process,
be
it
at
an
early
or
at
a
later
stage,
that
is
really
involved.
Such
right,
in
my
view,
has
therefore
no
application
to
a
non-criminal
situation,
where
Parliament
has
expressly
imposed
an
obligation
to
respond
as
in
subsection
231.2(1)
of
the
Income
Tax
Act.
In
the
case
at
bar,
not
only
were
the
plaintiffs
never
accused
of,
arrested
for
or
simply
detained
in
relation
to
any
criminal
offence,
but
as
indicated
by
the
witness
Pierre
St-Aubin,
Special
Investigator
for
the
Department
of
National
Revenue,
Taxation,
because
no
evidence
of
any
particular
criminal
offence
by
the
plaintiffs
had
been
found
at
the
time
of
the
impugned
requirements
for
information,
the
latter
saw
their
files
transferred
for
simple
audit
of
their
tax
returns
for
tax
liability
purposes.
The
mere
suspicion
of
the
plaintiffs'
participation
in
some
illicit
activities
involving
another
statute,
such
as
illegal
sale
of
wine,
is
not
sufficient,
in
the
circumstances,
to
confer
the
required
characteristic
of
formal
criminal
investigation
to
what
is
fundamentally
a
request
made
pursuant
to
the
provisions
of
a
specific
subsection
of
the
Income
Tax
Act,
which
subsection
is
not,
in
essence,
criminal
or
quasi-criminal
in
nature,
but
purely
regulatory.
Consequently,
absenta
genuine
criminal
context,
the
right
to
remain
silent
provided
by
section
7
of
the
Charter
cannot
here
be
infringed
or
violated.
For
all
those
reasons,
the
plaintiffs’
action
must
be
dismissed
with
costs.
Action
dismissed.
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