Taggart, J.A.:—The circumstances giving rise to this appeal are fully set out in the reasons for judgment of Mr. Justice McKenzie, whose judgment is one of two from which this appeal is taken. Mr. Justice McKenzie's reasons are reported in (1987), 15 B.C.L.R. (2d) 200; 36 C.C.C. (3d) 304. The second judgment under appeal is that of Mr. Justice Lysyk which is reported in (1988), 30 B.C.L.R. (2d) 342; [1989] 1 W.W.R. 508; 44 C.C.C. (3d) 79. In each case, my references will be to the reasons as reported in B.C.L.R. I will refer to the appellants as the taxpayers and the respondent as the Minister.
On this appeal, we are primarily concerned with the information sworn by Mr. Talbot on February 25, 1987; with the proceedings before Chief Justice McEachern, who issued the warrant which is attacked by the taxpayer; with the proceedings before Mr. Justice McKenzie; and with the proceedings before Mr. Justice Lysyk.
Mr. Justice McKenzie handed down his reasons for judgment on July 6, 1987. On July 30, 1987, the taxpayers filed a notice of appeal and a notice of application for leave to appeal from that judgment. Counsel for the taxpayers advised us that was done because he was uncertain whether leave to appeal would be required.
Mr. Justice Lysyk handed down his reasons for judgment on August 16, 1988. On September 13, 1988, the taxpayers filed a notice of appeal and a notice of application for leave to appeal from that judgment.
After Mr. Justice Lysyk's judgment was handed down, one formal judgment was entered dismissing the taxpayer's application. I think it would have been sufficient for the taxpayers to have given one notice of appeal and, if necessary, one notice of application for leave to appeal from the formal judgment of the court entered after judgment was given by Mr. Justice Lysyk. I can understand the caution of the solicitors for the taxpayers in proceeding as they did and nothing turns on the filing of separate notices of appeal and separate applications for leave to appeal. We have, throughout, treated the matter as if it were one appeal.
The applications for leave to appeal were set down for hearing on October 20, 1988. On the same day, the Minister brought a motion to quash the appeal on the ground that no appeal lies from the judgment of the Supreme Court entered following the handing down of reasons by Mr. Justice Lysyk.
We heard counsel's submissions on the motion to quash and reserved judgment. After giving the matter some consideration, we decided it would be preferable not to give judgment on the motion until full argument had been heard on the merits of the appeal. We heard argument on the merits of the appeal on January 16 and 17, 1989 and reserved judgment.
I propose to deal first with the motion of the Minister to quash the appeal. My opinion is the motion should succeed and the appeal should be quashed.
The information sworn on February 15, 1987 by Mr. Talbot describes the offences which form the foundation for the application for a warrant to search for documents:
OFFENCES
THE Informant says that there are reasonable and probable grounds to believe, and that he does believe, that the following offences under the Income Tax Act have been committed by the following named persons:
THAT Hellenic Import-Export Co. Ltd. and its president, Constantine Kourtessis, have committed an offence as defined by Section 239 of the Income Tax Act by wilfully evading or attempting to evade the payment of taxes by making false or deceptive statements in the T2 returns of income filed by Hellenic Import-Export Co. Ltd. for the taxation years 1980, 1981, 1982, 1983 and 1984.
THAT Constantine Kourtessis has committed an offence as defined by Section 239 of the Income Tax Act by wilfully evading or attempting to evade the payment of taxes by making false or deceptive statements in his T1 returns of income filed for the taxation years 1979, 1980, 1981, 1982 and 1983;
The provisions of the Income Tax Act, S.C. 1970-71-72 c. 63, as amended, (the Act) are applicable. The relevant provisions of section 239 are:
Sec. 239. Offences.
(1) Every person who has
* * *
(d) wilfully, in any manner, evaded or attempted to evade, compliance with this Act or payment of taxes imposed by this Act,
* * *
is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to
(f) a fine of not less than 25% and not more than double the amount of the tax that was sought to be evaded, or
(g) both the fine described in paragraph (f) and imprisonment for a term not exceeding 2 years.
(2) Idem. Every person who is charged with an offence described by subsection (1) may, at the election of the Attorney General of Canada, be prosecuted upon indictment and, if convicted, is, in addition to any penalty otherwise provided, liable to imprisonment for a term not exceeding 5 years and not less than 2 months.
Also relevant in relation to the motion to quash are the provisions of subsection 27(2) of the Interpretation Act of Canada, S.C. 1967-68, c. 7. That subsection provides:
Offences
| * * * |
Criminal Code |
to apply | (2) All the provisions of the Criminal Code relating to |
| indictable offences apply to indictable offences created by an |
enactment, and all the provisions of the Criminal Code relating to summary conviction offences apply to all other offences
created by an enactment, except to the extent that the
enactment otherwise provides.
Section 231.3 of the Act authorizes the issuance of search warrants:
Section 231.3: Search warrant.
(1) A judge may, on ex parte application by the Minister, issue a warrant in writing authorizing any person named therein to enter and search any building, receptacle or place for any document or thing that may afford evidence as to the commission of an offence under this Act and to seize and, as soon as practicable, bring the document or thing before, or make a report in respect thereof to, the judge or, where the judge is unable to act, another judge of the same court to be
dealt with by the judge in accordance with this section.
(2) Evidence in support of application. An application under subsection (1) shall be supported by information on oath establishing the facts on which the application is based.
(3) Evidence. A judge shall issue the warrant referred to in subsection (1) where he is satisfied that there are reasonable grounds to believe that
(a) an offence under this Act has been committed;
(b) a document or thing that may afford evidence of the commission of the offence is likely to be found; and
(c) the building, receptacle or place specified in the application is likely to contain such a document or thing.
(4) Contents of warrant. A warrant issued under subsection (1) shall refer to the offence for which it is issued, identify the building, receptacle or place to be searched and the person alleged to have committed the offence and it shall be reasonably specific as to any document or thing to be searched for and seized.
(5) Seizure of document. Any person who executes a warrant under subsection (1) may seize, in addition to the document or thing referred to in subsection (1), any other document or thing that he believes on reasonable grounds affords evidence of the commission of an offence under this Act and shall as soon as practicable bring the document or thing before, or make a report in respect thereof to, the judge who issued the warrant or, where the judge is unable to act, another judge of the same court to be dealt with by the judge in accordance with this section.
(6) Retention of things seized. Subject to subsection (7), where any document or thing seized under subsection (1) or (5) is brought before a judge or a report in respect thereof is made to a judge, the judge shall, unless the Minister waives retention, order that it be retained by the Minister, who shall take reasonable care to ensure that it is preserved until the conclusion of any investigation into the offence in relation to which the document or thing was seized or until it is required to be produced for the purposes of a criminal proceeding.
(7) Return of things seized. Where any document or thing seized under subsection (1) or (5) is brought before a judge or a report in respect thereof is made to a judge, the judge may, of his own motion or on summary application by a person with an interest in the document or thing on three clear days notice of application to the Deputy Attorney General of Canada, order that the document or thing be returned to the person from whom it was seized or the person who is otherwise legally entitled thereto if the judge is satisfied that the document or thing
(a) will not be required for an investigation or a criminal proceeding; or
(b) was not seized in accordance with the warrant or this section.
(8) Access and copies. The person from whom any document or thing is seized pursuant to this section is entitled, at all reasonable times and subject to such reasonable conditions as may be imposed by the Minister, to inspect the document or thing and to obtain one copy of the document at the expense of the Minister.
Counsel for the Minister said section 231.3 is a complete code governing the basis upon which search warrants may be issued and what may be done with things seized following the execution of a warrant. Subsection (7) provides for a review by a judge. He is authorized to order the return of things seized to the person from whom they were seized, provided the conditions of paragraphs (a) or (b) are met. It was submitted subsection (7) is the only statutory provision permitting any form of review of the order authorizing the issuance of a warrant. Section 239 of the Act coupled with subsection 27(2) of the Interpretation Act rely for their constitutional validity on subsection 91(27) of the Constitution Act, 1867.
In sum, the contention of the Minister was that if there is a right of appeal, it must be found in the provisions of the Criminal Code. No such provision is to be found there. On the contrary, in analogous circumstances, the Supreme Court of Canada has rejected the contention there is a right of appeal.
The taxpayers support the existence of an appeal as of right, or, by leave of this Court, on four bases:
1. The order made under section 231.3 of the Act authorizing the issuance of the warrant is an order of a Supreme Court judge made in the exercise of his ordinary jurisdiction. The order dismissing the taxpayers' application to set aside the section 231.3 order is of the same kind. Consequently, the provisions of paragraph 6(1)(a) of the Court of Appeal Act, S.B.C. 1982, c. 7 apply and there is an appeal as of right under that section; or by leave pursuant to section 6.1 of the Court of Appeal Act.
2. The taxpayers sought relief under subsection 24(1) of the Charter of Rights and Freedoms. They should be entitled to appeal from the refusal of that relief.
3. Alternatively, the relief sought by the taxpayers is the same as that provided for by Part XXVI of the Criminal Code and an appeal is authorized by Code section 719 (now section 784).
4. In any event, the taxpayers sought a declaration that the statutory scheme embodied in section 231.3 of the Act is unconstitutional and an appeal lies under paragraph 6(1)(a) of the Court of Appeal Act from the refusal of that relief.
I think it is first necessary to decide what is the nature of the proceedings taken under section 231.3 of the Act. If they are criminal law proceedings then subsection 28(2) of the Interpretation Act applies and any right of appeal must be found in the Criminal Code. A similar question faced the Ontario Court of Appeal in Goldman et al. v. Hoffman-La Roche Ltd. (1987), 60 O.R. (2d) 161; 35 C.C.C. (3d) 488.
In the Goldman case the appellant sought to appeal from an order of a judge of the Supreme Court of Ontario authorizing the issuance of a warrant pursuant to provisions of the Competition Act, R.S.C. 1970, c. 23. The respondent moved to quash the appeal because the Court of Appeal did not have jurisdiction to entertain it.
In giving judgment for the Court Finlayson, J.A. referred to the provisions of Part V of the Competition Act which creates offences. One of the offences was relied on as the basis for an order authorizing the issuance of a warrant to search. The respondent contended the relevant provisions of the Competition Act relied for their constitutional validity on the provisions of subsection 91(27) of the Constitution Act, 1867. The appellant contended the provisions were authorized by the trade and commerce power of the Constitution Act, 1867 found in subsection 91(2). Mr. Justice Finlayson reviewed the provisions of the Competition Act and authorities commenting on their nature and the Constitutional provisions sanctioning them. His conclusion was that while parts of the Competition Act required the trade and commerce power as support, Part V of the Competition Act could be sustained exclusively by reference to the criminal law power conferred by subsection 91(27).
By a parity of reasoning my conclusion is that the offence and ancillary provisions of the Act are constitutionally supported by subsection 91(27) of the Constitution Act, 1867. The fact that the provisions appear in a statute whose other provisions may require different Constitutional support does not alter the nature of the provisions with which we are concerned. My opinion is that this is legislation in relation to criminal law and because of the provisions of subsection 27(2) of the Interpretation Act our jurisdiction to entertain the appeal must be found in the Criminal Code and not in the Court of Appeal Act of British Columbia.
Parts XXI and XXVII of the Criminal Code clearly do not authorize an appeal from an order made pursuant to section 231.3 of the Act. In Regina v. Morgentaler (1984), 47 O.R. (2d) 353; 41 C.R. (3d) 262 the Ontario Court of Appeal dealt with a problem analogous to the one which faces us. In that case the accused were charged with conspiracy to procure an illegal abortion. Before trial they brought a motion to quash or stay the indictment on the ground that the proceedings were an abuse of process. They alleged that section 251 of the Criminal Code was contrary to the provisions of the Charter of Rights and Freedoms and to the Canadian Bill of Rights. In addition to Charter relief they sought other non-Charter relief. Their motion was refused at trial and they appealed to the Court of Appeal which quashed the appeal. Mr. Justice Brooke, in giving judgment for the court, held that neither subsection 24(1) of the Charter nor subsection 52(1) of the Constitution Act, 1982 conferred a right of appeal. He said the pursuit of Charter remedies must be in accordance with existing practice in Canadian courts.
Mr. Justice Brooke also dealt with the argument that subsection 52(1) of the Constitution Act, 1982 provided a foundation for a right of appeal and conferred jurisdiction on the court to hear an appeal from an interlocutory motion where a constitutional issue was raised in a criminal case. The argument was supported by reference to the decision of the Manitoba Court of Appeal in Re Bird and Peebles v. The Queen (1984), 12 C.C.C. (3d) 523. There accused persons sought an order in the trial court declaring invalid two sections of the Criminal Code because they infringed the Charter rights of the accused. The motion was dismissed and it was ordered that the trial proceed. The accused appealed to the Court of Appeal which rejected the contention that it had no jurisdiction to hear the appeal. It decided however that it would not be appropriate in the circumstances to hear the appeal. Mr. Justice Matas said at pages 530-31 :
Accordingly, for the reasons set out above, I would not accept the Crown's submission that this court does not have jurisdiction to hear the appeal but would grant the Crown's motion to quash the appeal on the ground that it would not be appropriate to allow the appeal to go forward.
In Morgentaler Mr. Justice Brooke did not agree that Mr. Justice Matas was of the view that subsection 52(1) of the Constitution Act, 1982 provides a right of appeal whenever a constitutional issue arises in a criminal case. He said at pages 273-74:
It may be that the court [in Bird and Peebles] was concerned that it should not foreclose the Constitution Act as a possible basis for jurisdiction if there were circumstances where there was no lower court which was a court of competent jurisdiction to which to apply for a remedy if rights and freedoms guaranteed by the Charter were refused or denied. That is not the case. There is a right of appeal to the Court of Appeal and jurisdiction in this court to hear an appeal by these accused in the event that they are convicted and, of course, the constitutional issue may well form a ground of such appeal if the accused are so advised. Moreover, there are strong policy reasons against interrupting the trial process with appeals to the Court of Appeal. The Court of Appeal for Manitoba recognized this in Bird, supra. The policy reasons are well known and need not be repeated here. For example, see the judgment of MacDonald J.A. in R. v. Cranston (1983), 60 N.S.R. (2d) 269, 128 A.P.R. 269 (C.A.).
In the result, then, we agree with the submissions of Crown counsel that neither s. 24(1) of the Charter nor s. 52(1) of the Constitution Act of themselves give any right of appeal to this court or jurisdiction in this court to hear this appeal.
In Mills v. The Queen, [1986] 1 S.C.R. 863; 26 C.C.C. (3d) 481 Mr. Justice McIntyre referred with approval to the reasons of Mr. Justice Brooke in Morgentaler. In Mills Charter relief was sought because of the undue delay by the Crown in proceeding with charges preferred against the appellant. The issues were many and complex and included whether there is a right of appeal by an accused person from a judgment refusing an application for relief under the Charter prior to trial. At pages 962 to 964 of his reasons for judgment Mr. Justice McIntyre said:
I am in respectful agreement with Brooke J.A. With deference to the view expressed by Matas J.A., in so far as it may be said to recognize a right in a person to appeal to the Court of Appeal on an interlocutory basis from a refusal by the trial court of a Charter claim before the completion of the trial, and jurisdiction in the Court of Appeal to hear it, I would reject it. I find support for this view in Re Laurendeau and The Queen (1983), 9 C.C.C. (3d) 206 (Que. C.A.), and in the judgment of Craig J.A. in Re Ritter and The Queen (1984), 11 C.C.C. (3d) 123 (B.C.C.A.) Esson J.A., for the majority, considered a question not dealt with by Craig J.A. He said, at p. 136:
There is however, another issue to be considered. . . . That question is whether a right of appeal has been conferred under provincial legislation which, in this province, is the Court of Appeal Act, 1982 (B.C.), c. 7.
He then said, after referring to /n re Storgoff, [1945] S.C.R. 526, and Re Turangan and Chui and The Queen (1976), 32 C.C.C. (2d) 254n (B.C.C.A.), at p. 137:
The question is: do the Code's limitations upon rights of appeal apply to Charter issues which are raised in respect of indictable offences?
A similar argument was raised in the case of Morgentaler, supra, and dealt with in summary terms by Brooke J.A., at p. 274:
Finally, Mr. Manning contends that jurisdiction may be found in the Judicature Act, particularly ss. 2 and 28. On the hearing of the preliminary motion we rejected this submission because this appeal arises in the context of criminal proceedings and s. 602 of the Criminal Code is exhaustive of appellate remedies with respect to the offence with which the accused are charged. The Judicature Act has no application in the circumstances: R v. Forget (1982), 35 O.R. (2d) 238, 65 C.C.C. (2d) 373 at 374-75 (Ont. C.A.).
I see no essential difference between the Ontario statute and the British Columbia Court of Appeal Act in this respect and I agree that the provisions of s. 602 of the Criminal Code, being exhaustive of appellate remedies with respect to criminal offences, would preclude the possibility of another appeal under any other statute. Legislation regarding criminal appeals falls clearly within the ambit of federal legislative authority. In my view, it is clear that the issue raised in the case at bar arose in a criminal case. Where an accused person invokes a provision of the Charter in a criminal case, the question of its application and effect is clearly criminal law within federal jurisdiction.
The argument has been raised that to adopt the view that an unsuccessful claimant for relief under s. 24(1) of the Charter must await the outcome of the trial to pursue his appeal is to introduce needless delay into the process of providing Charter remedies. It is argued that these applications deal with fundamental rights and freedoms and accordingly should have priority. This argument rests, in my view, on two fallacies. The first is the assumption implicit in the argument that the claimant is entitled to a remedy. The second is that allowing an interlocutory appeal will get a remedy for him more quickly than the ordinary process of the court.
It must be remembered that everyone who claims Charter relief will not necessarily get what he seeks. There will be successful claims and unsuccessful claims, and in respect of each claim the question of breach of the right and entitlement to relief will have to be dealt with. This is true of all rights, Charter and non-Charter. If we recognize some priority arising out of an allegation of a breach of a Charter right so that it is somehow lifted from the ordinary flow of cases and given a special right of immediate interlocutory appeal, I fear that the confusion which would result would far outweigh any benefit which successful individuals would achieve. Furthermore, there is no guarantee that an interlocutory appeal will accelerate the process. Rather, experience has shown that the interlocutory motion or appeal has all to [sic] frequently been the instrument of delay. In my view, it does not follow that interlocutory appeals will hasten the process. They are far more likely to delay the disposition of cases and would themselves tend to prolong the proceedings involved in the determination of Charter infringment. The history of this case affords an example.
Mr. Justice Beetz and Mr. Justice Chouinard agreed with Mr. Justice McIntyre. Chief Justice Dickson agreed with Mr. Justice Lamer who also referred with approval to the judgment of Mr. Justice Brooke in the Morgentaler case. At page 899 of his reasons Mr. Justice Lamer said:
Appeals
As the constitutionality of the charging section in this appeal has not been challenged, the question whether an appeal might lie from an interlocutory decision where the constitutionality of a law has been put in issue need not and should not be decided here. As regards all other cases, I am of the view that, as a general rule, the Charter does not confer a right of appeal, nor does it modify the rule that in criminal law there is no appeal from interlocutory findings. In this respect, I agree with the decision of the Court of Appeal for Ontario in R. v. Morgentaler, supra, in which it was said, at p. 271:
Section 24(1) does not purport to create a right of appeal or bestow appellate powers on this or any other court. Rather it authorizes those courts which have statutory appellate jurisdiction independent of the Charter to exercise the remedial power in s. 24(1) in appropriate cases when disposing of appeals properly brought before the court.
Mr. Justice Lamer went on to discuss whether a stay of proceedings has the effect of discontinuing or permanently suspending proceedings. At page 901 he said:
Hence, as a general rule, there is no appeal from an interlocutory decision on a Charter issue except where the decision has the effect of terminating the extant proceedings.
Madam Justice Wilson agreed in part with the judgment given by Mr. Justice Lamer. She did not deal with the question of a right of appeal from an interlocutory judgment in criminal proceedings.
At page 978 Mr. Justice La Forest said:
Since I do not think a separate non-Charter jurisdictional question is involved in this case, which might have made certiorari or prohibition an appropriate remedy, I have confined my remarks to the s. 24 remedy. From such application, neither the Charter nor the Criminal Code makes any provision for appeal and I do not think it lies within the province of the courts to create one. It may well be, however, that there is an appeal to this Court with leave from the superior court as the court of final resort.
As I read the judgments in Mills they support the proposition that at least in those cases where the interlocutory judgment does not have the effect of finally disposing of the trial proceedings there is no appeal to a Provincial appellate court. Clearly in this case the judgment under appeal does not finally dispose of the trial proceedings.
The issue of interlocutory appeals in criminal proceedings was again raised before the Supreme Court of Canada in Meltzer v. Laison and The Queen (1986), 29 C.C.C. (3d) 266 (B.C.C.A.); appeal to the Supreme Court of Canada dismissed, judgment rendered June 29, 1989. In Meltzer the appellant petitioned the Supreme Court of British Columbia to set aside the renewal of an order authorizing the interception of private communications. The petition sought what is known as a “Wilson review" which takes its name from the procedure adopted by the Supreme Court of Canada in Wilson v. The Queen, [1983] 2 S.C.R. 594; 4 D.L.R. (4th) 577. The petition was dismissed and the petitioners sought to appeal to this Court. The appeal was quashed because the court held it had no jurisdiction to hear it.
Before the Supreme Court of Canada it was argued that because the review procedure adopted in Wilson v. The Queen was derived from civil practice its validity did not rest solely on the criminal law power but was supportable under the power conferred by subsection 92(14) of the Constitutional Act, 1867. It was argued that would sanction an appeal under the provisions of the Court of Appeal Act of British Columbia. That argument was rejected by Mr. Justice McIntyre who gave judgment for the court. He agreed with the treatment of the subject by Mr. Justice Seaton and Mr. Justice Hutcheon in the Court of Appeal. After referring to passages from their reasons for judgment Mr. Justice McIntyre said at page 6 of his reasons:
I have referred to the judgments in the courts below in some detail because, in my view, they aptly dispose of this argument. I would add that this application to review the renewal of the authorization was simply an interlocutory motion in a criminal proceeding aimed at the exclusion of evidence in that proceeding. Section 178.14(1)(a)(ii) of the Code evisages an opening of the sealed packet. The Code provides no procedural guide for this purpose and limits the power to open to a judge of a superior court of criminal jurisdiction or a judge as defined in s. 482 of the Code. The fact that a procedural step deriving from civil practice was employed to meet this problem cannot be said to have converted the matter into anything approaching a civil appeal. It was not contended that the Criminal Code provided a statutory base for an appeal from the refusal of the review and, in my view, then this ground of appeal must fail.
It follows from the reasons I have so far given that I would reject the first and fourth grounds advanced by the taxpayers in support of their submission that a right of appeal lies under the provisions of the Court of Appeal Act of British Columbia. That leaves for consideration grounds 2 and 3.
Ground 2 suggests that because the taxpayers sought relief under subsection 24(1) of the Charter of Rights and Freedoms there must be a right of appeal from an order which rejects their contention that there were breaches of their Charter rights. A similar ground of appeal was rejected in Meltzer. At pages 8 to 11 of his reasons Mr. Justice McIntyre said:
The third ground of appeal was set out in these terms in the appellant's factum:
C. In the further alternative, authorizing and renewing judges are entrusted with the function of ensuring that the Constitutional right of citizens to be free from unreasonable search and seizure is protected; accordingly, a right of appeal must exist from orders granting authorizations and renewals.
The argument in support of this ground, simply put, is that the rights protected or guaranteed in the Charter are of such significance that an appeal should be available where relief under the Charter is denied at first instance. In short, what is asserted is that the Charter makes obligatory a right of appeal from any legal proceeding at first instance.
At common law there were no appeals. All appeals have been the creature of statute. It has not been argued that the Criminal Code in any of its appeal sections (602, 603, 605, 618, 719, 748) provides specifically for an appeal from a refusal of a Charter remedy. Therefore, if any such specific right exists it must be found in the Charter. The question facing the Court then is: Does the Charter, because of the importance of the interests it protects, provide an appeal against a refusal of a Wilson application for review despite the fact that neither the Criminal Code nor any other legislative enactment so provides? I assume—but do not decide— for the purposes of dealing with this question, that s. 8 of the Charter is engaged by the interception of private communications.
I would say at the outset that in my view the Charter does not provide such an appeal. In argument, the appellant referred to what I said in Mills v. The Queen, [1986] 1 S.C.R. 863, at pp. 958-59:
Again, it must be observed that the Charter is silent on the question of appeals and the conclusion must therefore be that the existing appeal structure must be employed in the resolution of s. 24(1) claims. Since the Charter has conferred a right to seek a remedy under the provisions of s. 24(1) and since claims for remedy will involve claims alleging the infringement of basic rights and fundamental freedoms, it is essential that an appellate procedure exist. There is no provision in the Code which provides a specific right to appeal against the granting, or the refusal, of a Charter remedy under s. 24(1), but appeals are provided for which involve questions of law and fact. The Charter, forming part of the fundamental law of Canada, is therefore covered and the refusal of a claim for Charter relief will be appealable by a person aggrieved as a question of law, as will be the granting of such relief by the Crown. The appeal will follow the normal, established procedure. When the trial is completed the appeal may be taken against the decision or verdict reached and the alleged error in respect of the claim for Charter relief will be a ground of appeal.
[Emphasis added.]
I would, however, add that with the approval of two more of the seven judges sitting upon the appeal, I went on to say in Mills v. The Queen, at p. 959:
The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1) of the Charter may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code (s. 602, supra) prohibiting procedures on appeal beyond those authorized in the Code.
The refusal of an application for a remedy or relief based on the Charter may well raise a question of law which could be the basis of an appeal under the Criminal Code against conviction or acquittal. Accepting this principle, however, will not assist the appellants in this case. They do not seek to appeal against a conviction under the Criminal Code appeal provisions. They seek to launch an interlocutory appeal concerning the admissibility of evidence which may be adduced at a future trial. There is no statutory basis for such an appeal and the law, as expressed in Mills v. The Queen, supra, and s. 602 of the Criminal Code, does not permit interlocutory appeals in criminal cases. I am, accordingly, satisfied that the Court of Appeal was correct in holding that it had no jurisdiction to entertain this interlocutory appeal.
The taxpayers said one of the remedies they sought in their petition was an order quashing the warrant to search. They submitted that relief is analogous to the remedies provided by Part XXVI of the Criminal Code. It follows in their submission there is an appeal pursuant to section 719 (now section 784).
I take it certiorari is the remedy they refer to in Code Part XXVI which is said to be analogous to the relief sought by the taxpayers. While the remedy of certiorari granted under Part XXVI may lead to the quashing of, for instance, a warrant of committal, the foundation for the relief is virtually always a want of jurisdiction or, in some cases, an act in excess of jurisdiction. I see nothing in the record before us to support this submission and indeed it was not pressed by counsel.
The taxpayers also relied on the decision of the Federal Court of Appeal in Atwal v. Canada (Govt.), [1987] 2 F.C. 309; 59 C.R. (3d) 339. In that case the court considered whether it had jurisdiction to hear an appeal from an order refusing to rescind an earlier order made ex parte which directed the issuance of a warrant to search. The warrant was authorized by the provisions of the Canadian Security Intelligence Service Act, S.C. 1984, c. 21.
Mahoney J. for the majority referred to the jurisdiction conferred on the Court of Appeal by subsection 27(1) of the Federal Court Act, R.S.C. 1970, c. 10 which authorizes appeals from a final judgment, from a question of law determined before trial and from an interlocutory judgment.
The Crown relied in argument on the decision of the Ontario Court of Appeal in the Goldman case but Mr. Justice Mahoney held it was inapplicable because the appeal in Atwal was not from an order authorizing the issuance of a warrant but from an order refusing to rescind such an order.
I do not think the decision in Atwal assists the taxpayers. That case turned on the jurisdiction conferred on the Federal Court of Appeal by its statute; and on the Federal Court rules governing an application to rescind an earlier order made ex parte. The case at bar rests on different circumstances which are analogous to those in the Goldman case and which are governed by the judgment of the Supreme Court of Canada in Meltzer.
For the foregoing reasons my opinion is this Court is without jurisdiction to entertain the appeal which must be quashed.
Locke, J.A.:— This is an appeal from a chambers judge who declined to set aside six search warrants. The grounds are:
(1) That the search warrant provisions of section 231.3 of the Income Tax Act are unconstitutional as being inconsistent with articles 7 and 8 of the Charter;
(2) that the issuing judge failed to carry out his statutory duty of weighing the evidence prior to ordering the issuance;
(3) that the material used by the applicant Crown was misleading;
(4) that the circumstances show that the application for the issue of the warrant was an abuse of the process of the court.
I have read in draft form the reasons of Taggart, J.A. and I agree with them. I go on, however, to deal with the matter on its merits.
The Facts
After investigation, officers of Revenue Canada formed the opinion Mr. Kourtessis and his captive company were evading, or attempting to evade, the payment of taxes by making false and deceptive statements in income tax returns for the years 1979-84.
On the morning of October 22, 1986 the officers constructively returned to the taxpayer all the records (still on Revenue Canada premises) which he had voluntarily given to them over a period of time during the course of their investigation. Some hours later six search warrants were obtained on application to Callaghan, J. in the Supreme Court. An application was subsequently made to Proudfoot, J. on February 20, 1987 and she quashed the warrants on the general basis that the Department failed to disclose material facts in their affidavit material used in support before Callaghan, J., and that in the circumstances of cooperation previously extended, and promised to be extended, there was no justification for issuing a warrant at all and ordered immediate return of the documents to the taxpayer. Following this decision, the Department swore a fresh Information to obtain a search warrant to authorize a search of their own office where the documents seized under the quashed warrants remained. Two days later, McEachern, C.J.S.C. (as he then was) issued a second warrant on the condition that everything seized would be sealed and the petitioner would have 30 days to challenge the warrant.
The petitioner applied to have the second warrant quashed on both constitutional and non-constitutional grounds. McKenzie, J. heard the nonconstitutional grounds and on July 6, 1987 dismissed the petitioner's application to quash. In January 1988 Lysyk, J. by agreement of all parties, heard the challenge on constitutional grounds and on August 16 he dismissed them.
This appeal was launched first as an application for leave to appeal the decision of McKenzie, J. On hearing the application, the court decided, in view of its complexity, to hear the matter on its merits, and it was so argued, together with the appeal from the decision of Lysyk, J. which is made as of right.
Constitutionality—Section 231.3 of the Income Tax Act
The appellant submits that subsections 231.3(1) and (3) offend against the Charter and are unconstitutional. I quote the relevant statutes:
Section 231.3: Seach warrant.
(1) A judge may, on ex parte application by the Minister, issue a warrant in writing authorizing any person named therein to enter and search any building, receptacle or place for any document or thing that may afford evidence as to the commission of an offence under this Act and to seize and, as soon as practicable, bring the document or thing before, or make a report in respect thereof to, the judge or, where the judge is unable to act, another judge of the same court to be dealt with by the judge in accordance with this section.
(2) Evidence in support of application. An application under subsection (1) shall be supported by information on oath establishing the facts on which the application is based.
(3) Evidence. A judge shall issue the warrant referred to in subsection (1) where he is satisfied that there are reasonable grounds to believe that
(a) an offence under this Act has been committed;
(b) a document or thing that may afford evidence of the commission of the offence is likely to be found; and
(c) the building receptacle or place specified in the application is likely to contain such a document or thing.
(4) Contents of warrant. A warrant issued under subsection (1) shall refer to the offence for which it is issued, identify the building, receptacle or place to be searched and the person alleged to have committed the offence and it shall be reasonably specific as to any document or thing to be searched for and seized.
(5) Seizure of document. Any person who executes a warrant under subsection (1) may seize, in addition to the document or thing referred to in subsection (1) any other document or thing that he believes on reasonable grounds affords evidence of the commission of an offence under this Act and shall as soon as practicable bring the document or thing before, or make a report in respect thereof to, the judge who issued the warrant, or, where the judge is unable to act, another judge of the same court to be dealt with by the judge in accordance with this section. . . .
[Emphasis added.]
Charter of Rights
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.
Unconstitutionality: Reasonable Grounds
The appellant submits that section 231.3 is unconstitutional as it says only in subsection (3) that the judge must have ”. . . reasonable grounds to believe . . ." and not ”. . . reasonable and probable grounds to believe . . ." which it is said is mandated under Hunter v. Southam, [1984] 2 S.C.R. 145; 84 D.T.C. 6467, as the minimum standard for issuing a search warrant.
It is instructive to deal chronologically with search warrant cases of the last ten years.
In M.N.R. v. Coopers and Lybrand, [1979] 1 S.C.R. 495; 92 D.L.R. (3d) 1 (tab 11) the Court had to consider the then existing provisions of s. 231.4 of the Income Tax Act which stated in part:
. . . (4) Where the Minister has reasonable and probable grounds to believe that a violation of this Act or a regulation has been committed, or is likely to be committed, he may, with the approval of a judge of a superior or county court. . . authorize in writing any officer . . . to enter and search . . . any building . . . for documents, . . . that may afford evidence as to the violation of any provision of this Act or a regulation . . .
[Emphasis added.]
The Court decided that the powers which the Minister exercised were those of administrative discretion governed by policy and expediency, while the powers which the judge exercised were judicial, and the decision of the Minister was held not reviewable.
In 1982 the Court in A.G. Nova Scotia v. A.G. Canada, [1982] 1 S.C.R. 175 was required to consider whether material supporting an executed search warrant issued under section 443 of the Criminal Code was open to inspection by the public. Dickson, J. (as he then was) said at page 179:
. . . A search warrant may be broadly defined as an order issued by a Justice under statutory powers, authorizing a named person to enter a specified place to search for and seize specified property which will afford evidence of the actual or intended commission of a crime. A warrant may issue upon a sworn Information and proof of reasonable grounds for its issuance. The property seized must be carried before the Justice who issued the warrant to be dealt with by him according to law. Search warrants are part of the investigative pre-trial process of the criminal law ....
The warrant in that case had been issued under the provisions of section 443 of the Criminal Code. That section states:
443. (1): A justice who is satisfied by information upon oath in Form 1, that there is reasonable ground to believe that there is in a building, receptacle or place
(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
(b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act or any other Act of Parliament, or
(c) anything that there is reasonable ground to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant,
may at any time issue a warrant under his hand . . .
Form 1 of the Code (the information which supported the warrant) read then as it does today:
. . . The informant says that (describe things to be searched for and offence in respect of which search is to be made), and that he has reasonable grounds for believing that the said things, or some part of them are in the (dwelling-house, etc.), of C.D., of ................................ in the said territorial division) (here add the grounds of belief, whatever they may be).
Wherefore the informant prays that a search warrant may be granted . . .
The Charter came into force in April of 1982 and the world changed. Hunter v. Southam, [1984] 2 S.C.R. 145 concerned the authorization to search and seize given by the director under the Combines Act. The legislation provided:
10. (1) Subject to subsection (3), in any inquiry under this Act the Director [of Investigation and Research of the Combines Investigation Branch] or any representative authorized by him may enter any premises on which the Director believes there may be evidence relevant to the matters being inquired into and may examine anything on the premises and may copy or take away for further examination or copying any book, paper, record or other document that in the opinion of the Director or his authorized representative, as the case may be, may afford such evidence.
(3) Before exercising the power conferred by subsection (1), the Director or his representative shall produce a certificate from a member of the [Restrictive Trade Practices] Commission, which may be granted on the ex parte application of the Director, authorizing the exercise of such power....
[Emphasis added.]
The Court said:
. . . To read subss. 10(1) and 10(3) as simply allowing the authorizing party to satisfy himself on these questions, without requiring him to do so, would in my view be clearly inadequate. Such an amorphous standard cannot provide a meaningful criterion for securing the right guaranteed by s. 8. The location of the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state cannot depend on the subjective appreciation of individual adjudicators. Some objective standard must be established.
Requiring the authorizing party to satisfy himself as to the legality of the inquiry and the reasonableness of the Director's belief in the possible existence of relevant evidence, would have the advantage of substituting an objective standard for an amorphous one, but would, in my view, still be inadequate. The problem is with the stipulation of a reasonable belief that evidence may be uncovered in the search. Here again it is useful, in my view, to adopt a purposive approach. The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resiting [sic] them. To associate it with an applicant's reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip that balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.
Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave "strong reason to believe” that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is “reasonable ground to believe” that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . .” The phrasing is slightly different but the standard in each of these formulations is identical. The state's interest in detecting and preventing crime begins to prevail over the individual’s interst in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshhold for subordinating the expectation of privacy to the needs of law enforcement. Where the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one. That is not the situation in the present case. In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure. In so far as subss. 10(1) and 10(3) of the Combines Investigation Act do not embody such a requirement, I would hold them to be further inconsistent with s. 8 . . . .
[Emphasis added.]
In The Queen v. Print Three Inc., [1985] 2 C.T.C. 48; 85 D.T.C. 5303 the Ontario Court of Appeal declared that in the light of Hunter v. Southam the then subsection 231(4) of the Income Tax Act was unconstitutional. In 1986 the Income Tax Act was amended to the present form of section 231.3.
In Simmons v. The Queen (unreported), S.C.C., December 8, 1988 the Court had to decide whether the personal search provisions of the Customs Act were inconsistent with section 8 of the Charter. The Chief Justice referred to Hunter v. Southam in discussing the matter, saying that that case established three criteria: First, that the search must have been approved by prior authorization, second, that the person authorizing the search must act in a judicial manner, and “... finally, there must be reasonable and probable grounds, established upon oath, to believe that the offence had been committed, and that evidence of this is to be found at a particular place ..." He continued:
. . . In this case it is clear that the Hunter v. Southam standards are not met. Sections 143 and 144 do not mandate prior authorization of personal searches by a person acting in a judicial capacity. The standard upon which a search may be conducted under the provisions, reasonable cause to suppose, also fall short of the reasonable and probable grounds established on oath required by Hunter. There is no warrant requirement....
. . . it is true that a determination of reasonableness must depend to some degree on the circumstances in which a search is performed. In my view, however, it would be incorrect to place overwhelming emphasis on the surrounding circumstances when assessing reasonableness under s. 8. Regardless of the constraints inherent in the circumstances, the safeguards articulated in Hunter v. Southam Inc. should not be lightly rejected. Although Hunter did not purport to set down immutable preconditions for validity applicable to all searches, the Court arrived at the three minimum prior authorization requirements only after examining the values s. 8 is meant to protect. Foremost among these values is the interest in preventing unjustified searches before they occur. This is a basic value regardless of situational constraints. In light of the importance of preventing unjustified searches, departures from the Hunter v. Southam Inc. standards that will be considered reasonable will be exceedingly rare . . .
It is argued that the newly enacted subsection 231.3 (3) is wounded fatally because of the omission of the words “and probable":
. . . A judge shall issue the warrant referred to . . . where he is satisfied that there are reasonable grounds to believe that. . .
Subject to what follows, there is no Canadian authority directly in point dealing with the question as to whether the words “reasonable” and "reasonable and probable” can necessarily be equated and one looks for general clues. Indefatigable appellant’s counsel supplied the Court with a list of 54 Canadian statutes ranging from the Agricultural Products Standards Act to the Yukon Act each of which contain distinct search and seizure clauses and all of which contain provisions relating to the exercise of judicial discretion by the judge or other authority. The statutes were produced in support of another argument in this case, but for what it is worth, only two of those statutes used the standard “reasonable and probable grounds"—the Transportation of Dangerous Goods Act c. 36 and the Yukon Act c.Y2. On December 12, 1988, amendments were proclaimed of these last statutes presumably pursuant to the provisions of the Statute Revision Act, R.S.C. 1985, c.S-20, which permits the Statutes Revision Commission to make such alterations in language as may be required to preserve a uniform mode of expression. In any event, the words "and probable” were deleted from those statutes.
Section 443 of theCri minai Code (Information for a search warrant) has always read, and now uses, the word “reasonable” only.
The 1988 edition of Martin's Criminal Code sets out section 455, which reads:
455. Anyone who, on reasonable and probable grounds believes that a person has committed an indictable offence may lay an Information . . .
The corresponding section in the 1989 edition of Martin, section 504, omits the words "and probable”. In like manner, Form 2, the general form of Information, was amended by deletion. Section 10 of the Narcotic Control Act provides that a peace officer may:
. . . seize and take away any narcotic . . . in such place in which he reasonably suspects a narcotic is contained and the Justice (who is satisfied by information upon oath that there are reasonable grounds for believing that there is a narcotic . I in any dwelling-house may issue a warrant. . .
However, the word “probable” still appears in Form 7, the Warrant for Arrest, and in a number of other sections of the Criminal Code dealing in particular with the defence of self-defence.
In Hunter v. Southam at page 158 the Chief Justice also said:
. . . The Fourth Amendment of the United States Constitution, also guarantees a broad right. It provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Construing this provision in Katz v. United States, 389 U.S. 347 (1967), Stewart J. delivering the majority opinion of the United States Supreme Court declared at p. 351 that “the fourth amendment protects people, not places". Justice Stewart rejected any necessary connection between that amendment and the notion of trespass. With respect, I believe this approach is equally appropriate in construing the protections in s. 8 of the Charter of Rights and Freedoms. . . .
In R. v. De Bot (1986), 54 C.R. (3d) 120 Martin, J.A. said, referring to Hunter v. Southam:
. . . The standard of “reasonable grounds to believe" and that of “probable cause”, which is contained in the Fourth Amendment to the American Constitution are identical. The standard . . . is not to be equated with proof beyond a resaonable doubt or a prima facie case. The standard to be met is one of reasonable probability. . ..
The Supreme Court has, on a number of occasions, referred to decisions of the United States and picks and chooses as to whether it will apply the reasoning, always taking care to say these cases are of limited use though their underlining [sic] philosophy is often illuminating. In an article to which we were referred, The Incredible Shrinking Fourth Amendment by Cyrus J. Was- serstrom [1984] 21 American Criminal Law Review 271 the author learnedly dissects varying changes of interpretation adopted by the Supreme Court of the United States over the many years since the declaration of the Fourth Amendment. At page 306 the author says:
. . . Certainly, the phrase “probable cause" suggests a quantum of evidence at least sufficient to establish more than a fifty percent probability—at least some sort of more-likely-than-not or preponderance of the evidence standard. Although the Court has not expressed the probable cause requirement in these probabilistic terms, it has for years consistently stated the requirement in a way that suggests an even higher degree of probability. For what the Court has said is that probable cause for an arrest exists where the evidence is “sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” And it has used the equivalent language to describe the quantum of evidence required to justify a search, i.e. that the police officer must reasonably believe that the evidence sought will be found in the place to be searched. Such a belief would clearly not be warranted if the facts available to the officer made it as likely as hot that he was wrong. Probable cause interpreted in this way also has a very important virtue; it sets a fixed and intelligible standard for the officer who is contemplating an evidentiary search or an arrest. It tells him that unless he thinks that the search will be, not might be, successful, or unless he thinks that the suspect has, not might have, committed an offense, he must investigate further before he can search or seize evidence....
[Emphasis added and the author's.]
When I look at the comparative uniformity of Canadian Statute law in relation to search and seizure provisions I find that now in almost every case the word “reasonable” is used and not the words "reasonable and probable”. The appellant's argument on this point rests upon one paragraph in Hunter v. Southam as establishing a standard of conduct for the issuance of search warrants. I acknowledge that the word is used again, four years later, in Simmons, which purports to summarize Hunter, but five years earlier in Coopers & Lybrand, the word “probable” was not mentioned.
On a further consideration of Hunter v. Southam three other points arise. In the first place, subsection 10(1) of the Combines Investigation Act then under consideration does not contain the word either "reasonable" or "probable". Second, section 443 of the Criminal Code—“reasonable cause"—is referred to both by Prowse, J.A. of the Alberta Court of Appeal and in the body of the Chief Justice's judgment, without any apparent disapproval, and last, when the Chief Justice comments on section 443 of the Criminal Code and contrasts it with the American Bill of Rights at page 167, he says:
... The phrasing is slightly different, but the standard in each of these formulations is identical....
In perspective I now find that the word “probable” has substantially vanished from the statutory jurisprudence of federal statutes. Why is this so? Is it for the sake of uniformity? Or have “reasonable and probable” been deemed to be the same? I do not agree that they are the same, and I refer to Was- serstrom's commentary previously cited.
I find the grounds of “reasonable” above entirely satisfactory in dealing with all matters other than search warrants. The invasion of a dwelling house has been commented on recently in this court in R. v. Parent (1989 unreported) and by the Supreme Court of Canada in Simmons. I find it disturbing to consider that if the word "reasonable" means that the applicant hopes to find something, but the words "reasonable and probable” mean he expects to find it, that the lesser standard will do to invade a dwelling house.
If one takes the two phrases and reads them literally, side by side, I do not think the use of the word “reasonable” is enough.
However, if the words of Chief Justice Dickson "the phrasing is slightly different but the standard in each of these formulations is identical” referring to the American Constitution means anything, it must mean that the words can be subject to a gloss of interpretation. If, for instance, the word "reasonable" is to be interpreted to mean that the police officers must reasonably believe that the evidence sought will be found in the place to be searched, then I am content: this suggests a "more likely than not" standard. Less than this seems to me to be only an exploration, which should not be allowed.
Adhering to the literal view only would mean that all the search and seizure provisions in Canada should be set aside. Allowing a gloss would save them. However, I examine only one statute—the Income Tax Act. It is the judge who under subsection 231.3(3) must be satisfied that there are reasonable grounds to believe that (a) an offence under this Act has been committed; (b) a document or thing that may afford evidence of the commission of the offence is likely to be found; and (c) the building receptacle or place specified in the application is likely to contain such a document or thing.
It is important that (b) and (c) contain the word “likely”. This must come from the evidence before the judge. If he is then satisfied that the deponent believes that the document may “likely” be found on the premises, I think the more-probable-than-not test has been satisfied. So, in the last resort, I think the Hunter v. Southam test is satisfied.
In the result I am of the view that the appropriate standard is met and preserved by the wordings of the sections under challenge.
No Discretion Left in the Judge
The next ground of constitutionality is that the words of subsections 231.3(1) and (3) are inconsistent with articles 7 and 8 of the Charter as no judicial discretion is reserved to the judge, which is said to be fundamental.
In Re M.N.R. and Paroian, [1980] C.T.C. 131; 80 D.T.C. 6077 Morden, J.A. of the Ontario Court of Appeal said in passing on the former subsection 231(4) of the Income Tax Act:
. . . The function of the judge is the most important safeguard. It is implicit in the provision that the judge is not to act as a rubber stamp. “The judge sits to scrutinize [with utmost care] the intended exercise of ministerial discretion.” M.N.R. v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at p. 506. He has a duty to consider the cogency of the evidence put before him in determining what facts it "establishes". He surely has a discretion, in a proper case, to withhold his approval, if he considers that the facts do not justify it. It would not be possible or helpful to say anything more on the subject of the exercise of his discretion, except with respect to one point: although the provision, as I have said, does not require the authorization to be particularized as to specific offences, I would not wish in these reasons to foreclose the possibility that in some cases, depending upon his view of the facts established, a judge could, as part of a residual discretion, and as an alternative to refusing approval outright, approve an authorization that contained some limitation as to its scope. I express no concluded opinion on this point....
In Solvent Petroleum Extraction Inc. v. M.N.R., [1988] 1 C.T.C. 325, 88 D.T.C. 6224 (tab. 120) the Court was asked to quash a search warrant on the basis that the taxpayer had cooperated with the Minister and in any event, the Minister had enough documents in his hands. The Trial Division of the Federal Court stated :
. . . In a recent case before the Supreme Court of Ontario, McLeod and Red Lake Supermarkets v. The Queen, wherein O'Leary, J. gave oral reasons in October, 1987, the complaint of the applicant was that there had been a non-disclosure, "that the applicant co-operated" and had turned over "numerous records". The applicant argued that the first judge had therefore the discretion not to issue the warrant. The third paragraph of the transcript of the oral reasons for judgment reads as follows:
I am of the view there is no such discretion in the judge. If he is satisfied that the requirements of s. 231.3(3) have been met, then the statute says he shall issue the warrant. At that point it is of no consequence that the judge thinks that the Director already has enough evidence or that the taxpayers would allow the search and deliver the documents without the warrant.
I share the view expressed by O'Leary, J. It was not for the first judge nor is it for me to decide whether or not the taxpayers have sufficiently co-operated and whether or not the investigators need more documents to complete their investigation ....
In Knox Contracting Ltd. v. The Queen, [1989] 1 C.T.C. 174; 89 D.T.C. 5074 (tab. 99) it appears that Turnbull, J. in the court below had been moved under subsection 231.3(7) for an order quashing two search warrants issued ex parte by him: and he declined to do so. The Court of Appeal observed that the trial judge did not have any power to entertain an application to quash the warrants after he had issued them, as all he did was issue the warrant, not order its issuance: and as this was the act of a superior court judge who by legislation was made part of the investigatory process and as he had himself no power to quash his own order, there could be no effective appeal. I understand the decision on the basis that the words “issue a warrant" imply only a ministerial act and not a judicial decision to issue process.
In Re Hertel, [1987] 1 C.T.C. 15; 8 B.C.L.R. (2d) 104, Bouck, J. had an application under subsection 231.3(6) that the documents or things seized be retained by the Minister of National Revenue until the conclusion of the investigation. That section reads:
(6) ... where any document or thing seized . . . is brought before a judge or a report in respect thereof is made to a judge, the judge shall, unless the minister waives retention, order that it be retained by the minister....
He commented at some length on the thesis that the independence of the judiciary was at stake as no discretion was left in the trial judge. He solved it as did Osler, J. in Re Church of Scientology and R. (1985), 14 C.R.R. 303; 21 C.C.C.
(3d) 118 by saying:
. . . in a like way, I propose to hold that Parliament really meant to say "may" instead of “shall” in s. 231.3(6) of the Income Tax Act. Such an interpretation leaves a discretion in the court as to whether items seized can be retained by the Income Tax Department when it applies for an order....
In his view the doctrine of separation of powers of executive and judiciary was directly challenged, and he canvassed the existing decisions at some length, they going both ways in Canada, but the three American authorities he cited all held that the legislation was unconstitutional as an intrusion upon the judicial function since it completely removed from the judiciary the power to refuse the issue of a warrant in certain cases.
The ground of the interference with the independence of the judiciary was not argued before us, but I take due note thereof. The principal argument was based on Hunter v. Southam and its insistence upon the pivotal importance of the assessment by the judge. Subsections 231.3(1) and (3) were contrasted with section 443 of the Criminal Code which says:
. . . a justice who is satisfied by Information upon oath in Form 1 that there is reasonable ground to believe . . . may at any time issue a warrant under his hand authorizing a person named therein
(v) to search . . . and to seize . . . .
This was interpreted by the courts in Descoteaux v. Mierzwinski and A-G Quebec, [1982] 1 S.C.R. 860; 141 D.L.R. (3d) 590 where Lamer, J. set out the arguments and gave his view on the jurisdiction of the court to attach conditions:
. . . Some would say that the justice of the peace has no discretion to refuse to issue a search warrant or to impose terms of execution once the requirements of form and substance in s. 443 have been met. They would argue that in s. 443 the word "may" means “must” and does not confer any discretion. According to this interpretation, the justice of the peace may issue a warrant only if he is satisfied that there is reasonable ground to believe that one of the things provided for in s. 443(1) is to be found in the place sought to be searched, but must do so as soon as he is so satisfied, and the only condition of execution on the premises that he may impose is set out in s. 444 of the Code:
444. A warrant issued under section 443 shall be executed by day, unless the justice, by the warrant, authorizes execution of it by night.
Others, on the contrary, would say that generally the justice of the peace has the discretion to refuse the warrant, so long as this discretion is exercised judicially and so long as the decision to refuse the warrant is not capricious or arbitrary.
The justice of the peace, in my view, has the authority, where circumstances warrant, to set out execution procedures in the search warrant. I would even go so far as to say that he has the right to refuse to issue the warrant in special circumstances, such as those found in Re Pacific Press Ltd. and The Queen et al., supra . . . .
Hunter v. Southam emphasized the crucial role of the independent arbiter—the judge—and set up an objective standard. The judge is the balance wheel between conflicting interests of the State on the one hand and the individual on the other. With this in mind I turn to an analysis of section 231.3. In abbreviated form it says:
... (1) a judge may on ex parte application, issue a warrant
(2) an application under s-s. (1) shall be supported by information on oath establishing the facts on which the application is based
(3) a judge shall issue the warrant referred to in s-s. (1) where he is satisfied that there are reasonable grounds to believe that
(a) . . .
(b) a document or thing that may afford of the commission of the offence is likely to be found, and
(c) the building . . . specified . . . is likely to contain such a document....
I am of the opinion these three subsections must be read together. The crucial function of the judge is to decide whether the facts before him are sufficient to warrant an intrusion of privacy. This is discretionary in the judge. In order to exercise his discretion, the guidelines are set out in subsection (3). If the evidence fails the standards of subsection (3), he will not be satisfied and will decline to issue the warrant. If the evidence's sufficient, the statute says he “shall” issue the warrant.
It is said that this deprives the judge of a discretion. It does not deprive him of the discretion as to whether the warrant should issue at all, and as to which he fulfils his balance wheel function. It does deprive him of a discretion as to whether the warrant in fact issues after he makes the primary essential decision.
One might ask rhetorically, and why not? Having made the primary decision, surely the figurative stamping of the piece of paper is unimportant. What the mandatory word does is to deprive the judge of the discretions argued for in Paroian—that it was unnecessary to issue the process because the Minister already had enough material. This is not for the Court to say, but I do not feel that the standards of Hunter v. Southam have been defeated. The judge's crucial role has been fulfilled and nothing remains except to stamp the piece of paper. It is thus true that discretion has been impaired in an administrative aspect, but not at all to impair the judge's primary function. It is also plain he can always attach conditions to the manner of execution of the warrant, and this of his own motion under the doctrine of inherent jurisdiction.
I do not believe the independence of the judge is threatened: it is only he who has the power to decide whether the process will issue, and he has the opportunity of doing that. What follows is surplusage.
It is therefore my opinion that section 231.3 does not impair the court's discretion to fulfil its duties in its crucial role of acting as the independent arbiter between State and individual.
Wholesale Search and Seizure
The next ground is that the entire section and particularly subsection (5) authorizes a wholesale search and seizure, and such a statutory scheme is unconstitutional and offends against the authority of Hunter v. Southam. In that latter case the court said:
. . . At the outset it is important to note that the issue in this appeal concerns the constitutional validity of a statute authorizing a search and seizure . . . It is not the conduct of the appellants but rather the legislation under which to act to which attention must be directed . . . .
Under predecessor subsection 231(4) the Minister was enabled to ask for a warrant which enabled an officer to enter and search any building ”. . . for documents . . . 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". In M.N.R. v. Kruger Inc., [1984] 2 F.C. 535 the Federal Court of Appeal held that the search and seizure there authorized by the minister was unreasonable because it was not limited to evidence relating to the particular offences allegedly committed by the respondents, but in relation to a breach of any other provision of the Act that the Minister had not then thought of. The statute was altered to its present form: subsection 231.3(5): it is said that this is no improvement and it still continues to authorize what is in effect a fishing expedition.
The appellant said in his factum:
Moreover, alleged violations to the Income Tax Act are often complex financial matters which cannot be discovered without extensive research and audit. It is submitted that an investigator cannot during a seizure determine whether one, or a series of documents, relates to alleged violation(s). It follows that unless the "reasonable grounds" with respect to the document exists prior to the seizure, in which case that document should be included generally to ascertain sufficient grounds during the execution of the warrant to search, to justify the seizure of documents not mentioned therein . . . .
I think the present law of Canada is well expressed by Dube, J. in Solvent Petroleum Extraction Inc. v. M.N.R., [1988] 1 C.T.C. 325; 88 D.T.C. 6224 where the question of lack of specificity was raised in that the warrants were too general and too vague. The Court discussed Print Three Inc. v. The Queen. The Court commented there on the detailed nature of the affidavits, found them sufficiently specific and said:
. . . The standard of “reasonable ground to believe” is not to be equated with proof beyond reasonable doubt as in a criminal offence but merely the civil standard of reasonable probability (see Regina v. Debo (1986) 54 C.R. (3d) 120 at 132) ....
The trial judge there went on to compare the old section under the Income Tax Act with the new and concluded that notwithstanding subsection 231.3(5) still provided that a person may seize:
... in addition to the documents or things referred to in s-s. (1) any other document or thing that he believes on reasonable grounds affords evidence of the commission of an offence under this Act....
The additional safeguards afforded by the new section 231.3 made the search and seizure procedures acceptable and within the “reasonable limit prescribed by law" under section 1 of the Charter.
We were referred to American authorities which admittedly can be of some assistance, but not in my view to a degree sufficient to overturn the view expressed in Solvent Petroleum. I am content to adopt the reasoning in that case as my own, and I would dismiss this ground of appeal.
The next ground of appeal is that McEachern, C.J. when he acceded to the application for the second warrant did not have regard to the principles which should have guided him.
When the application came on to be heard McEachern, C.J. had only a limited time within which to deal with it and in the result after giving such consideration as he could, ordered the warrant issued with a reservation to the effect that its validity could be challenged within 30 days. That challenge was not heard by him but by McKenzie, J. as to the facts, and by Lysyk, J. as to the constitutional objection. It is alleged that the Chief Justice, in dealing with the respondent's application to issue a warrant to search misdirected himself as to the condition precedent to issuing a warrant. What he did say was this:
THE COURT : I don't think I should decide now whether you should be at liberty to apply to set aside on some grounds, not others. I think I indicated what I was really trying to do was to preserve the process by not getting a judge deciding whether to issue a warrant or not into a position where he may have to reserve and consider matters that don't fall strictly within the statute of requirements for a search warrant. I think when a judge is deciding whether to issue a search warrant or not, he looks at whether it’s alleged that there is reasonable ground to believe an offence has been committed and whether there are—or likely documents serviced—which will assist in the conduct of the investigation and prosecution. And if so he makes the order. And then the other side is that, apply to set it aside on what ground it deems appropriate. I don't think I should do any more than just make the or[d]er in this case with the additional provision that it be sealed for 30 days, and I think it should be added to the order that it’s further ordered that, or that these 2 gentlemen, 'X' and 'Y' shall be at liberty to set this order aside on such grounds they may be advised and whoever hears it decides whether he should hear it on any different grounds —
THE COURT: I am sorry, Mr. Learn I don't think I want to hear a lot of arguments. I think you are at liberty to set aside this warrant aside [sic].
When the motion to set aside came before McKenzie, J. in his extensive reasons he said:
. . . The reality is that I am the judge designated to consider and weigh the whole material placed before the Chief Justice and every aspect of it has been emphasized to me. There has been a surfeit rather than a scarcity of material before me
and later:
... That case differed to some degree from this case because there I had to consider whether I could review a warrant issued ex parte. Here the Chief Justice did not issue the warrant ex parte but he issued it conditionally anticipating, correctly, that the justification for that issuance would be meticulously examined by another judge given the benefits of time and full argument.
As I see my present function, I must deal with the situation as if I had been the judge of first instance having heard two-sided argument and having time to carefully scrutinize and consider all the material.
On that basis, looking backward to the time of presentation to the Chief Justice, had I been sitting in his place I would have been misled on the stubs issue because at that time Mr. Talbot still held the mistaken belief that they were payroll stubs. The affidavit of the translator engaged by the petitioner who found them to be postal receipts was not filed until 4 May 1987, long after the hearing before the Chief ustice....
The Chief Justice heard the matter on February 27 and at the conclusion of this he said:
... I am satisfied in the circumstances that at this stage at least a warrant should issue . . . I think it should be issued . . . on terms that the documents be sealed and I think that should continue for a period of 30 days unless in the meantime you bring an application . . . to question the ultra vires of the legislation under which I am proceeding and on any other grounds that you think advisable. I am dealing with the matter as I have said at the issuing level only for the purpose of creating a situation that will give rise or might give rise to a more substantive attack and the documents will remain seized to give you an opportunity to do that if you are so advised . ...
On the return of a motion to settle the order on March 2, the Chief Justice further said:
... I think I indicated what I was really trying to do was to preserve the process by not getting a judge deciding whether to issue a warrant or not into a position where you may have to reserve and consider matters that do not fall strictly within this statute of requirement for a search warrant. I think when a judge is deciding whether to issue a search warrant or not, he looks at whether it is alleged that there is reasonable ground to believe an offence has been committed, and whether there are ... or likely documents served . . . which will assist in the conduct of the investigation or the prosecution and if so he makes the order, and then the other side is that, apply to set it aside on what ground it deems appropriate. I don't think I should do anything more than just make the order in this case with the additional provision that it is to be sealed for 30 days . . . .
Subsequent to that on May 20-22, 1987 a wholesale attack was launched on the merits and on July 6 by written reasons McKenzie, J. dismissed it. McKenzie, J. was not available at the appropriate time and in the result the constitutional argument was made before Mr. Justice Lysyk on January 26-28, 1988 and judgment was given on August 16, 1988.
At the time the Chief Justice made his decision, neither he nor any other judge was available to hear the motion. He in effect considered the matter on a prima facie basis only: even a cursory glance at the affidavits in support would indicate the volume and extraordinary detail covered by the material. In effect, he satisfied himself that there was a case to be made, but his reasons quoted above show he was fully aware of the factors involved in deciding whether to issue the warrant. In effect, after an initial decision on the merits, he issued the warrant and adjourned the matter for further consideration. Had he been able, he no doubt would have heard the complete assault himself, but the exigencies of court room life obliged him to delegate the further detailed consideration to McKenzie, J.
The matter was heard in full on the merits at an appropriate time and in full as to the constitutional argument at another appropriate time, the scheduling difficulties of the court making the attendance of the same judge at a time suitable to both counsel impossible. But as the object was to give the respondent taxpayer time to make a full attack, that object was achieved, and I cannot see that any objection to this course is other than technical. To say that the courts are unable to act unless they can devote time at that instant is not realistic and the pragmatic method in which this review was carried out secured a full and proper hearing for both appellant and respondent.
I would dismiss this ground of appeal.
Misrepresentation in the Material
The argument was made before McKenzie, J. in the court below and the material exhaustively analyzed by him. It was argued that the affidavits used did not tell the truth in that they deliberately concealed what the investigators were looking for. He came to the conclusion (page 280) that:
. . . The petitioner's primary criticism is that both Informations and both search warrants failed to categorically state that the informant believed the searches would find documentary evidence to refute the petitioner's contention about his West German earnings. As I see it, the petitioner detects a compositional fault in the first Information in that it did not express this primary purpose under the heading DOCUMENTS OR THINGS TO BE SEARCHED FOR but left that purpose to be discovered in a paragraph in one of the supplementary documents which was referred to under the heading GROUNDS FOR BELIEF. He complains that the disclosure of the West German facts was in the wrong place and discretely isolated
And later, at page 287:
... The problem here, as I see it, is a compositional one. The composer of an Information must possess a grasp of the facts to be related and the narrative ability to set them out in an orderly and comprehensive way. No two people w[o]uld perform the task in the same way. It is unlikely that any rendering would escape all criticism. However it was told, the story would be long and complex . . . .
and he concluded at page 297:
. . . My overall conclusion is that I have been shown the entire picture candidly and comprehensively, that any previous omissions have been filed, that there have been no material misrepresentations and no "false swearing" in an Information as in Den Hoy Gin. There have been some compositional imperfections and an inaccuracy about the nature of the "stubs" but none of these faults is so grave as to justify the quashing of the second warrant....
I have looked at the elaborate material. I agree with McKenzie, J.
Abuse of Process
The last ground alleged is that the whole was an abuse of court process, being a disguised appeal from the unentered order of Proudfoot, J. which the Crown had not complied with. I do not agree. The point was raised by the learned counsel for the taxpayer on the hearing on February 27 and reference was made to the case of Dobney Foundry Ltd. v. The Queen (No. 3), [1987] 1 W.W.R. 281; 29 C.C.C. (3d) 285 I have perused the transcript and I do not think the matters there raised constituted an abuse.
In the result of all grounds the appeal fails and I would so dispose of it.
Appeal dismissed.