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
Justice
.
.
.
.
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:
.
.
.
1
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.
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