Strayer,
J.:
—
Introduction
This
is
an
application
for
prohibition
to
prohibit
the
respondent
Minister
from
demanding
information
from
the
applicant
under
paragraph
231.2(1)(a)
of
the
Income
Tax
Act,
for
an
order
directing
the
Minister
to
return
any
documents
or
information
already
obtained
under
that
paragraph
and
prohibiting
him
from
communicating
any
knowledge
of
such
information
to
any
other
person;
and
for
any
other
order
as
may
seem
just,
including
as
an
alternative
an
order
that
the
applicant
be
allowed
to
deposit
any
further
information
demanded
of
him
with
the
Court
in
a
sealed
package
not
to
be
opened
until
certain
criminal
charges
against
him
have
been
disposed
of.
At
the
hearing
of
this
application,
counsel
for
the
Minister
argued
that
the
only
appropriate
remedy,
if
the
Court
thought
any
remedy
was
justified,
would
be
certiorari
to
quash
the
"requirements"
for
information
already
issued
on
behalf
of
the
Minister
in
respect
of
the
applicant.
Counsel
for
the
Minister
indicated
that
she
would
be
prepared
to
treat
the
notice
of
motion
as
having
been
properly
amended
to
request
such
a
remedy,
and
counsel
for
the
applicant
agreed
that
this
could
be
considered
as
an
alternative
remedy
sought
by
him.
Background
Facts
By
informations
sworn
on
July
22,
1987,
the
applicant
and
several
others
were
charged
with
unlawfully
conspiring
to
import
and
traffic
in
narcotics
between
October
1,
1982
and
June
6,
1987,
contrary
to
the
Narcotic
Control
Act,
and
with
possessing
the
proceeds
of
crime
contrary
to
section
312
of
the
Criminal
Code.
On
September
4,
1987
an
article
appeared
in
the
Toronto
Globe
and
Mail
referring
to
these
charges
and
listing
the
applicant
Alan
Tyler
as
one
of
the
persons
charged.
Shortly
thereafter
Ross
Carbone,
an
auditor
with
the
Special
Investigations
Section
of
Revenue
Canada
in
Toronto
was
assigned
by
his
supervisor
Jim
Davies
the
task
of
reviewing
Mr.
Tyler's
taxation
position
with
respect
to
the
taxation
years
1983
to
1986.
For
this
purpose
he
was
given
the
article
from
The
Globe
and
Mail
and
some
of
the
tax
returns
relevant
to
Mr.
Tyler.
He
collected
other
relevant
returns
and
subsequently
was
given
access
to
60
boxes
of
documents
seized
by
the
Royal
Canadian
Mounted
Police
in
connection
with
the
criminal
prosecutions
against
Mr.
Tyler
and
several
other
people.
In
examining
all
60
boxes,
Mr.
Carbone
found
four
documents
which
he
considered
relevant
to
Mr.
Tyler's
tax
position
and
made
copies
of
these.
During
this
stage
of
the
investigation
he
developed
an
initial
"net
worth"
statement
and
reached
the
tentative
conclusion
that
for
the
years
in
question
Mr.
Tyler
had
a
total
unreported
income
of
$251,622.18.
At
the
request
of
an
R.C.M.P.
officer
involved
in
the
prosecution,
Mr.
Carbone
communicated
this
estimate
to
him
orally.
On
October
28,
1987
Mr.
Carbone
contacted
Mr.
Tyler
and
told
him
that
he
was
auditing
Mr.
Tyler's
income
tax
for
the
years
in
question.
By
arrangement
he
met
with
Mr.
Tyler
at
Mr.
Tyler's
place
of
business,
Bobby
Rubino’s
Place
for
Ribs.
Mr.
Carbone
was
accompanied
by
Jim
Davies.
He
asked
Mr.
Tyler
a
number
of
questions,
some
of
which
Mr.
Tyler
was
unable
to
answer.
Subsequently,
on
the
same
day
Mr.
Carbone
caused
to
be
served
on
Mr.
Tyler
several
written
"requirements"
to
provide
further
information
in
respect
to
the
taxation
years
in
question.
These
requirements
purported
to
be
issued
on
behalf
of
the
respondent
Minister
pursuant
to
subsection
231.2(1)
of
the
Income
Tax
Act.
By
them
Mr.
Carbone
sought
information
concerning
Mr.
Tyler's
personal
and
living
expenses
during
each
of
the
relevant
taxation
years,
and
details
of
his
assets
and
liabilities
at
the
end
of
each
of
the
years
in
question.
The
applicant
Mr.
Tyler
declined
to
respond
to
the
requirements
issued
on
behalf
of
the
Minister,
and
commenced
these
proceedings
by
notice
of
motion
dated
November
26,
1987.
That
notice
of
motion
was
replaced
by
consent
by
the
present
notice
of
motion
dated
November
4,
1988.
There
has
been
extensive
cross-examination
on
affidavits
filed
by
Messrs.
Carbone
and
Tyler
in
respect
to
the
application.
In
the
meantime
Mr.
Carbone
provided
a
revised
net
worth
estimate
to
the
R.C.M.P.
on
February
10,
1988,
in
writing.
I
was
advised
that
the
Crown
preferred
direct
indictments
on
the
criminal
charges
on
February
15,
1988
and
that
the
trial
of
those
charges
is
currently
underway.
Legislative
Framework
The
most
relevant
provisions
of
the
Income
Tax
Act
are
as
follows:
231.2(1)
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.
.
.
.
241(1)
Except
as
authorized
by
this
section,
no
official
or
authorized
person
shall
(a)
knowingly
communicate
or
knowingly
allow
to
be
communicated
to
any
person
any
information
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act,
(b)
knowingly
allow
any
person
to
inspect
or
to
have
access
to
any
book,
record,
writing,
return
or
other
document
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act,
or
(c)
knowingly
use,
other
than
in
the
course
of
his
duties
in
connection
with
the
administration
or
enforcement
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act,
any
information
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act.
241(2)
Notwithstanding
any
other
Act
or
law,
no
official
or
authorized
person
shall
be
required,
in
connection
with
any
legal
proceedings,
(a)
to
give
evidence
relating
to
any
information
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act,
or
(b)
to
produce
any
book,
record,
writing,
return
or
other
document
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act.
241(3)
Subsections
(1)
and
(2)
do
not
apply
in
respect
of
criminal
proceedings,
either
by
indictment
or
on
summary
conviction,
that
have
been
commenced
by
the
laying
of
an
information,
under
an
Act
of
the
Parliament
of
Canada,
or
in
respect
of
proceedings
relating
to
the
administration
or
enforcement
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act.
It
is
also
important
to
note
that
by
subsection
238(2)
it
is
an
offence
not
to
comply
with
a
requirement
issued
under
subsection
231.2(1).
Further,
by
paragraph
239(1)(a)
it
is
an
offence
to
make
a
false
or
deceptive
statement
in
any
answer
required
to
be
given
under
the
Act.
Determination
of
Necessary
Issues
There
are
three
essential
issues
for
determination:
were
these
requirements
intrinsically
valid
as
properly
issued
on
behalf
of
the
Minister
under
subsection
231.2(1);
if
so,
are
they
nevertheless
unconstitutional
in
effect
because
they
are
part
of
a
scheme
to
deny
rights
of
the
applicant
protected
by
sections
7,
8,
11(c),
11(d)
and
13
of
the
Canadian
Charter
of
Rights
and
Freedoms,
as
supplemented
by
the
Canadian
Bill
of
Rights
paragraphs
2(d)
and
(f);
and
even
if
they
are
not
barred
by
the
Constitution,
is
communication
of
the
information
obtained
under
them
prohibited
by
section
241
of
the
Act?
As
will
be
noted
below
under
the
heading
"Remedies",
I
accept
that
there
would
be
remedies
available
in
this
Court
if
the
applicant
were
to
succeed
on
any
of
these
substantive
issues.
With
respect
to
the
first
issue,
the
essence
of
the
applicant's
position
is
that
the
requirements
purportedly
issued
under
paragraph
231.2(1)(a)
were
not
"for
any
purpose
related
to
the
administration
or
enforcement"
of
the
Income
Tax
Act
as
required
by
the
opening
words
of
that
subsection.
Instead,
the
applicant
contends
that
the
real
purpose
of
these
requirements
was
to
obtain
information
from
the
applicant
for
the
purposes
of
the
prosecutions
against
him
under
the
Narcotic
Control
Act
and
the
Criminal
Code.
It
is
clear
that
the
exercise
of
the
Minister’s
power
to
issue
requirements
under
this
subsection
is
subject
to
a
degree
of
judicial
review.
The
Supreme
Court
of
Canada
confirmed
this
in
James
Richardson
&
Sons,
Limited
v.
M.N.R.,
[1984]
1
S.C.R.
614;
[1984]
C.T.C.
345
in
which
it
followed
its
own
decision
in
Canadian
Bank
of
Commerce
v.
Attorney
General
of
Canada,
[1962]
S.C.R.
792;
[1962]
C.T.C.
35,
both
cases
dealing
with
the
predecessor
provision
in
the
Act
which
for
present
purposes
is
essentially
the
same.
In
the
Richardson
case
the
Court
enunciated
some
criteria
which
it
derived
from
the
Bank
of
Commerce
case.
The
criterion
which
is
relevant
to
the
issues
in
this
case
is
as
follows:
(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;
What
the
applicant
alleges
in
the
present
case
is
that
the
information
sought
under
section
231.2
of
the
Income
Tax
Act
was
really
sought
at
the
request
of
the
R.C.M.P.
for
the
purposes
of
its
criminal
investigation.
The
evidence
in
support
of
this
allegation
consists
of
a
flimsy
tissue
of
innuendos.
It
is
suggested
that
because
the
tax
audit
of
Mr.
Tyler
was
only
commenced
after
the
Department
of
National
Revenue
became
aware
of
the
criminal
prosecutions
(as
reported
in
The
Globe
and
Mail)
the
tax
audit
activities
were
clearly
and
solely
related
only
to
those
prosecutions.
I
am
unable
to
draw
any
such
inference.
Mr.
Carbone
makes
the
rather
obvious
statement
in
his
affidavit
that
in
his
experience:
The
fact
that
a
taxpayer
has
been
charged
with
the
offences
of
drug
trafficking
and/
or
possession
of
property
obtained
by
crime
raises
the
possibility
that
there
is
unreported
income.
This
provides
a
completely
credible
explanation
for
the
tax
audit
being
undertaken
after
Revenue
Canada
became
aware
of
the
charges,
and
in
no
way
makes
the
audit
a
mere
subterfuge
for
the
investigation
of
alleged
crimes.
Other
even
more
tenuous
evidence
of
such
subterfuge
was
the
fact
that
the
Revenue
Canada
officer
who
served
the
"requirements"
on
Mr.
Tyler
on
November
2nd
was
accompanied
by
an
R.C.M.P.
officer
who
was
from
the
same
unit
as
that
conducting
the
investigation
of
the
charges
against
Mr.
Tyler
and
others.
The
evidence
shows
that
it
is
general
policy
to
have
a
Revenue
Canada
officer
accompanied
by
a
peace
officer
when
serving
requirements
on
people
who
are
also
charged
with
crimes,
and
that
the
commercial
crimes
unit
of
the
R.C.M.P.,
which
was
conducting
the
criminal
investigations
in
question,
was
also
the
unit
which
routinely
provided
assistance
to
Revenue
Canada
in
matters
of
service.
Again,
I
can
infer
from
these
circumstances
no
plot
to
use
the
provisions
of
the
Income
Tax
Act
to
obtain
information
for
the
criminal
investigation.
It
was
contended
that
because
the
initial
net
worth
estimate
reached
by
Mr.
Carbone
before
serving
the
requirements
was
so
speculative
as
to
be
very
unreliable,
it
could
not
form
the
basis
for
a
bona
fide
investigation
of
which
the
requirements
would
form
a
part.
But
there
is
no
particular
standard
of
information
or
belief
which
the
Minister's
officers
must
achieve
before
deciding
to
issue
such
requirements.
I
accept
Mr.
Carbone's
evidence
that
his
initial
assessment
of
net
worth
was
the
best
he
could
do
under
the
circumstances
and
its
unreliability
only
emphasized
the
need
for
more
information
to
be
obtained
from
Mr.
Tyler
to
complete
the
audit.
Apart
from
these
issues
involving
the
circumstances
under
which
the
requirements
were
prepared
and
served,
the
applicant
contends
that
the
real
purpose
of
the
tax
audit
is
demonstrated
by
the
fact
that
Mr.
Carbone
has
conveyed
to
the
R.C.M.P.
certain
of
the
information
which
he
has
gained
during
the
tax
audit.
This
does
not
per
se
demonstrate
that
the
tax
audit
was
for
the
purposes
of
aiding
the
R.C.M.P.
Revenue
Canada
transmitted
this
information
only
after
seeking
legal
advice
and
it
is
their
position
that
such
communication
was
justified
under
subsection
241(3)
of
the
Income
Tax
Act
which
I
will
deal
with
later.
Again,
these
facts
do
not
begin
to
establish
that
the
essential
purpose
of
the
tax
audit
was
to
assist
the
criminal
investigation:
at
worst,
the
communication
of
such
information
was
only
a
by-product
of
the
audit,
one
which
the
officers
concerned
honestly
believed
to
be
permitted
by
law.
The
burden
on
the
applicant
to
establish
a
fraudulent
or
ulterior
purpose
by
Revenue
Canada
in
issuing
these
requirements
is
a
heavy
one
which
he
has
not
met.
There
is
no
direct
evidence
in
support
of
such
purpose
and
the
circumstantial
evidence
is
but
slight.
As
against
this,
the
evidence
of
Mr.
Carbone
is
clear
and
unequivocal
that
he
acted
without
any
direction
from
the
R.C.M.P.,
for
the
purposes
of
the
tax
audit
only.
He
maintained
this
position
in
the
face
of
a
very
extensive
cross-examination.
I
therefore
reject
this
aspect
of
the
applicant’s
case
and
find
that
the
requirements
in
question
were
issued
for
a
purpose
related
to
the
administration
or
enforcement
of
the
Income
Tax
Act.
As
noted
earlier
the
applicant
contends
that
even
if
the
requirements
issued
were
intrinsically
valid
they
form
part
of
a
scheme
to
deprive
him
of
certain
constitutional
or
quasi-constitutional
rights.
The
main
right
relied
on
is
that
under
paragraph
11(c)
of
the
Charter
which
is
as
follows:
11.
Any
person
charged
with
an
offence
has
the
right
(c)
not
to
be
compelled
to
be
a
witness
in
proceedings
against
that
person
in
respect
of
the
offence
.
.
.
The
respondent
contends
that
this
right
is
not
violated
because
in
respect
to
the
furnishing
of
information
in
accordance
with
the
requirements
issued
under
paragraph
231.2(1)(a)
of
the
Income
Tax
Act
the
applicant
is
not
"a
witness"
nor
is
he
being
asked
for
this
information
in
respect
to
“any
offence".
Under
the
circumstances
it
is
not
necessary
for
me
to
decide
whether
the
applicant
would
be
a
witness
in
complying
with
the
requirements.
I
think
that
matter
is
far
from
clear.
While
it
has
been
said
that
paragraph
11(c)
of
the
Charter
only
refers
to
testimonial
evidence,
it
arguably
provides
protection
against
an
accused
being
forced
to
disclose
any
knowledge
he
may
have
about
the
alleged
offence
while
not
protecting
him
from
the
use
of
physical
evidence
against
him
(such
as
breathalyser
results)
even
if
obtained
without
his
consent.
Subsection
231.2(1)
authorizes
certain
questions
to
be
put
to
a
taxpayer
and
as
noted
earlier
he
is
obliged
by
subsection
238(2)
to
respond
to
such
questions.
Further,
by
paragraph
239(1)(a)
he
is
obliged
to
respond
truthfully
or
he
may
be
subject
to
a
penalty.
The
cumulative
effect
of
these
provisions
appears
not
unlike
the
compelling
of
testimonial
evidence
as
to
the
knowledge
of
the
taxpayer.
Nevertheless,
I
need
not
decide
whether
in
such
circumstances
the
applicant
would
be
a
“witness”
because
it
is
clear
that
he
is
not
being
compelled
to
answer
“in
proceedings
against
[him]
in
respect
of
[an]
offence"
as
required
by
paragraph
11(c)
of
the
Charter.
There
is
no
offence
in
issue
in
the
tax
audit.
The
common
law
protection
against
self-crimination
did
not
extend
to
such
matters
prior
to
the
Charter,
nor
has
the
protection
of
paragraph
11(c)
been
so
regarded
since
the
adoption
of
the
Charter.
In
this
respect
the
applicant
has
also
referred
to
paragraph
2(d)
of
the
Canadian
Bill
of
Rights
which
requires
that
no
law
of
Canada
shall
be
construed
or
applied
so
as
to:
(d)
authorize
a
court,
tribunal,
commission,
board
or
other
authority
to
compel
a
person
to
give
evidence
if
he
is
denied
counsel,
protection
against
self-crimination
or
other
constitutional
safeguards.
.
.
.
It
appears
that
this
provision
also
relates
only
to
the
trial
of
offences
because
it
speaks
of
"self-crimination".
Further,
the
Minister
or
his
officer
to
whom
the
information
must
be
given
under
the
Income
Tax
Act
cannot
be
regarded
in
the
context
as
an
"other
authority”
as
referred
to
in
that
paragraph.
So
paragraph
2(d)
in
no
way
assists
the
applicant.
In
argument
the
applicant
also
appeared
to
be
relying
on
section
13
of
the
Charter
which
provides:
13.
A
witness
who
testifies
in
any
proceedings
has
the
right
not
to
have
any
incriminating
evidence
so
given
used
to
incriminate
that
witness
in
any
other
proceedings,
except
in
a
prosecution
for
perjury
or
for
the
giving
of
contradictory
evidence.
It
is
clear
that
in
the
steps
currently
being
taken
under
the
Income
Tax
Act
the
applicant
is
not
in
danger
of
being
“incriminated”.
What
is
involved
is
a
civil
type
procedure,
akin
to
discovery,
to
assist
in
determining
the
extent
of
the
applicant's
obligations.
There
is
also
a
question
which
I
need
not
determine
as
to
whether
the
applicant
"testifies",
as
required
by
section
13
of
the
Charter,
when
he
provides
such
information.
But
in
any
event
it
is
clear
that
it
would
be
premature
for
me
to
decide
in
these
proceedings
that
such
information
could
never
be
admissible
under
section
13
in
the
criminal
prosecutions.
I
would
have
to
decide
that
now
in
order
to
consider
the
applicant's
request
that
I
prevent
the
gathering
of
such
information
because
it
could
lead
to
a
violation
of
section
13.
It
is
for
the
Court
at
the
time
such
evidence
is
being
presented
against
an
accused
“in
any
other
proceeding"
to
decide
whether
it
should
be
excluded
under
section
13.
Only
that
tribunal
can
determine
whether
such
evidence
would
be
“incriminating”.
Further,
I
have
no
knowledge
as
to
the
nature
of
the
information
being
requested
of
the
applicant
which
he
believes
could
be
incriminating.
In
his
affidavit
Mr.
Tyler
simply
states
that
he
is
unwilling
to
furnish
any
financial
information
which
may
be
used
as
evidence
against
him
in
the
criminal
proceedings
and
states
that
his
counsel
has
advised
him
that
"evidence"
obtained
through
the
tax
audit
would
be
considered
relevant
at
his
trial.
When
he
was
cross-examined
on
this
affidavit
he
testified
under
the
protection
of
the
Canada
Evidence
Act
and
the
Ontario
Evidence
Act
but
nevertheless
declined
to
answer
most
of
the
questions
put
to
him
as
to
the
nature
of
the
information
which
would
in
his
view
be
incriminating.
The
respondent
has
not
challenged
those
refusals
before
the
Court,
but
whether
the
applicant
was
entitled
to
refuse
or
not
he
has
thereby
denied
the
Court
the
sort
of
evidence
that
would
be
needed
to
prove
a
potential
infringement
of
section
13
rights.
Therefore
even
if
it
were
proper
for
me
to
do
so,
I
would
be
in
no
position
to
assess
whether
the
information
in
question
would
have
anything
whatsoever
to
do
with
the
alleged
activities
for
which
he
is
being
prosecuted
in
the
criminal
courts.
The
applicant
also
invoked
the
presumption
of
innocence
guaranteed
under
paragraph
11(d)
of
the
Charter
and
protected
by
paragraph
2(f)
of
the
Canadian
Bill
of
Rights.
As
far
as
I
could
understand,
the
only
relevance
this
has
to
the
present
proceeding
is
with
respect
to
the
issuance
of
the
requirements
under
section
231.2
of
the
Income
Tax
Act.
Counsel
for
the
applicant
argued
that
by
launching
a
tax
audit
after
hearing
of
criminal
charges
being
laid
against
Mr.
Tyler
in
respect
of
drug
trafficking
and
importation
and
possession
of
the
proceeds
of
crime,
Revenue
Canada
was
presuming
him
to
be
guilty
of
these
offences.
This
is
an
argument
which
can
only
be
characterized
as
ludicrous.
The
fact
that
charges
were
laid
for
such
offences
would
convey
to
Revenue
Canada
that
some
public
officer
had
a
reasonable
belief
in
the
involvement
of
the
applicant
in
activities
typically
generating
large
and
illicit
revenues.
This
would
certainly
justify
Revenue
Canada
looking
into
the
applicant's
tax
position
at
the
same
time
as
the
criminal
investigation
continued.
The
Minister
of
National
Revenue
is
surely
not
obliged
to
wait
for
what
may
be
the
several
years
required
to
bring
the
criminal
proceedings
to
an
end
before
he
reviews
the
applicant's
tax
position
during
the
years
of
activity
covered
by
the
indictments.
Some
general
argument
was
based
on
sections
7
and
8
of
the
Charter.
First,
with
respect
to
section
8,
I
am
satisfied
that
the
obtaining
of
information
by
the
Minister
under
subsection
232.1(1)
of
the
Income
Tax
Act
does
not
amount
to
a
"seizure".
There
is
no
physical
intrusion
involved.
The
taxpayer
is
required
by
law
to
provide
the
information
demanded
of
him,
but
he
is
at
liberty
to
challenge,
as
he
is
doing
in
these
proceedings,
the
validity
of
the
requirements
before
providing
the
information.
With
respect
to
section
7,
I
am
doubtful
that
it
provides
additional
procedural
protection
in
areas
specifically
covered
by
the
other
legal
rights
in
sections
8
to
14.
Counsel
has
certainly
made
no
compelling
argument
that
some
constitutional
protection
exists
in
these
circumstances
beyond
those
provided
in
the
specific
sections
of
the
Charter
I
have
already
discussed.
I
am
therefore
unable
to
find
any
Charter
or
Canadian
Bill
of
Rights
provisions
which
can
be
invoked
at
this
stage
to
prevent
the
acquisition
or
use
of
the
information
recovered
pursuant
to
the
requirements
served
on
the
applicant
under
subsection
232.1(1)
of
the
Income
Tax
Act.
The
third
principal
issue
raised
by
the
applicant
is,
as
previously
noted,
that
the
communication
of
information
by
Revenue
Canada
to
the
R.C.M.P.
is
prohibited
by
subsection
241(1)
of
the
Income
Tax
Act
and
is
not
within
the
exception
to
that
prohibition
provided
by
subsection
241(3),
all
as
quoted
above.
It
will
be
noted
that
subsection
241(1)
generally
prohibits
Revenue
Canada
officials
from
knowingly
communicating,
allowing
any
outside
person
to
inspect,
or
knowingly
using,
for
purposes
other
than
that
Act,
any
information
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
the
Income
Tax
Act.
On
its
face
this
provision
would
cover
information
which
has
already
been
passed
by
Mr.
Carbone
to
the
R.C.M.P.,
which
appears
to
have
been
based
in
part
on
the
income
tax
returns
of
Mr.
Tyler
and
of
companies
related
to
him.
It
would
also
cover
information
obtained
in
the
future
if
there
is
compliance
with
the
requirements
already
served
on
Mr.
Tyler
on
November
2,
1987.
Further,
subsection
241(2)
would
preclude
such
officials
from
even
testifying
with
respect
to
or
producing
such
information
under
subpoena
in
the
criminal
prosecution.
It
is
important
however
to
consider
the
exceptions
to
subsections
(1)
and
(2)
provided
by
subsection
241(3)
which
I
will
quote
again
for
the
sake
of
convenience:
241(3)
Subsections
(1)
and
(2)
do
not
apply
in
respect
of
criminal
proceedings,
either
by
indictment
or
on
summary
conviction,
that
have
been
commenced
by
the
laying
of
an
information,
under
an
Act
of
the
Parliament
of
Canada,
or
in
respect
of
proceedings
relating
to
the
administration
or
enforcement
of
this
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act.
The
present
circumstances
fall
squarely
within
subsection
(3).
First,
the
criminal
proceedings
in
question
had
already
been
commenced
by
the
laying
of
an
information
before
the
tax
audit
was
commenced
and
before
any
information
was
communicated
by
Revenue
Canada
to
the
R.C.M.P.
Further,
I
am
satisfied
that
such
information
was
communicated
“in
respect
of
criminal
proceedings".
Criminal
proceedings
were
obviously
underway
and
the
applicant
does
not
deny,
in
fact
he
insists,
that
the
information
which
has
been
communicated
or
which
will
be
communicated
is
with
direct
reference
to
those
prosecutions.
The
exception
in
subsection
(3)
clearly
applies
both
with
respect
to
the
conveyance
of
such
information
by
"communication"
as
well
as
by
the
giving
of
evidence.
Just
as
I
held
that
the
communications,
past
or
future,
between
Revenue
Canada
and
the
R.C.M.P.
were
within
the
prohibition
of
subsection
(1),
I
equally
find
that
they
are
covered
by
the
exception
in
subsection
(3).
This
does
not
mean
that,
as
counsel
for
the
applicant
argued,
such
a
plain
meaning
interpretation
of
subsection
(3)
would
permit
the
general
broadcasting
of
tax
information
pertaining
to
an
individual
once
he
has
been
charged
with
any
offence.
The
communication
must
be
“in
respect
of"
the
criminal
proceedings.
This
is
an
important
limitation
whose
meaning
will
have
to
be
determined
in
the
context.
Suffice
it
to
say
that
I
am
satisfied
that
a
communication
of
information
to
public
officers
engaged
in
the
prosecution
of
criminal
offences
where
that
information
may
be
of
relevance
to
the
offences
being
prosecuted
is
within
the
permitted
scope
of
the
subsection.
There
is
nothing
to
indicate
that
the
rather
meagre
information
already
communicated
to
the
R.C.M.P.
was
other
than
relevant
to
the
prosecutions
then
underway
and
I
have
no
reason
to
believe
that
future
communications,
if
such
there
be,
will
be
otherwise.
It
might
be
noted
in
passing
that,
even
if
such
information
were
not
provided
by
Revenue
Canada
voluntarily,
it
could
be
compelled
to
produce
such
information
before
the
court
in
the
criminal
prosecution
by
reason
of
the
exception
created
by
subsection
241(3)
to
the
general
prohibition
against
such
compulsion
in
subsection
241(2).
Counsel
for
the
applicant
further
argued
that
subsection
241(3)
should
be
given
a
narrow
interpretation
because
there
was
introduced
in
Parliament
on
May
29,
1987,
but
not
adopted
prior
to
the
dissolution
of
the
thirty-third
Parliament,
Bill
C-61
to
Amend
the
Criminal
Code.
The
Bill
proposed
a
new
section
420.28
of
the
Criminal
Code
which
would
allow
the
Attorney
General
in
the
course
of
an
investigation
of
drug
offences
to
apply
to
a
court
for
the
authority
to
obtain
particular
types
of
information
from
the
Minister
of
National
Revenue
originally
obtained
under
the
Income
Tax
Act.
According
to
counsel,
this
indicates
that
the
Government
of
Canada
does
not
believe
that
there
is
authority
at
present
under
subsections
241(2)
or
(3)
to
obtain
such
information
during
an
investigation.
I
do
not
find
this
argument
compelling.
In
the
first
place,
the
new
provision
would
apply
to
all
investigations
whether
criminal
charges
had
yet
been
laid
whereas
subsection
241(3)
applies
only
after
an
information
has
been
laid.
More
fundamentally,
I
cannot
be
authoritatively
guided
in
interpreting
the
language
of
existing
statutes
by
some
inference
I
might
draw
as
to
what
the
Government
of
Canada
thinks
or
does
not
think
that
statute
means.
Further,
what
inference
is
to
be
drawn
with
respect
to
the
intention
of
the
Government
or
of
Parliament
when
such
an
amendment
is
allowed
to
die
on
the
Order
Paper
some
sixteen
months
after
its
introduction?
I
am
therefore
satisfied
that
in
principle
information
obtained
under
subsection
231.2(1)
of
the
Income
Tax
Act
can
be
communicated
voluntarily
to
peace
officers
engaged
in
prosecuting
criminal
offences
for
which
charges
have
already
been
laid,
where
the
information
is
relevant
to
such
prosecution.
I
am
satisfied
that
any
information
so
communicated
to
date
in
the
present
matter
has
been
within
the
authorization
provided
by
subsection
241(3)
and
there
is
no
basis
upon
which
I
can
apprehend
that
future
communications
will
not
be.
Remedies
For
the
foregoing
reasons
it
is
not
necessary
for
me
to
determine
what
specific
remedy
might
be
available
in
this
case.
However
to
confirm
that
I
deem
the
substantive
issues
properly
before
the
Court
for
review
because
there
are
remedies
which
could
have
been
given,
I
shall
deal
briefly
with
those
remedies.
The
parties
were
in
agreement
that
certiorari
to
quash
the
"requirements"
issued
under
paragraph
231.2(1)(a)
of
the
Income
Tax
Act
would
be
one
possible
remedy.
I
am
also
inclined
to
think
that
in
a
proper
case
prohibition
would
be
available
to
prevent
the
Minister
of
National
Revenue
from
enforcing
those
demands.
It
appears
to
me
that
the
issuing
of
such
"requirements"
is
an
administrative
act.
Generally
speaking
certiorari
and
prohibition
can
be
given
on
the
same
grounds,
albeit
that
prohibition
is
normally
given
prior
to
the
act
complained
of
being
performed
while
certiorari
is
used
to
quash
some
past
decision.
One
ground
common
to
both
remedies
is
absence
or
excess
of
jurisdiction
which
is
really
what
is
at
issue
in
this
proceeding.
That
is,
the
applicant
contends
that
the
"requirements"
issued
by
the
Minister
were
unauthorized
by
the
Income
Tax
Act
and
if
enforced
would
violate
the
constitutional
rights
of
the
applicant,
a
result
which
the
Minister
has
no
authority
to
effect.
It
was
confirmed
by
the
Supreme
Court
of
Canada
in
Martineau
v.
Matsqui
Institution
Inmate
Disciplinary
Board,
[1978]
1
S.C.R.
118;
106
D.L.R.
(3d)
385,
that
the
Trial
Division
of
this
Court
can
review
administrative
decisions
in
the
exercise
of
its
certiorari
power
under
section
18
of
the
Federal
Court
Act.
Similarly,
it
would
follow
that
this
Court
could
issue
prohibition
orders
in
the
course
of
reviewing
administrative
decisions
on
jurisdictional
grounds.
Conclusions
For
the
foregoing
reasons
I
am
dismissing
the
application
with
costs.
Application
dismissed.
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