Date: 20120424
Docket: A-273-11
Citation: 2012 FCA 125
CORAM: PELLETIER
J.A.
GAUTHIER
J.A.
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
DOUGLAS LEWRY AND PATRICIA
LEWRY
Respondents
REASONS FOR JUDGMENT
PELLETIER
J.A.
[1]
The
Attorney General has launched three appeals from a decision of the Federal
Court. The decision applied to three separate applications for judicial review
filed by Mr. Siggelkow, Mr. Blerot, and Mr. and Ms. Lewry respectively
(collectively the respondents). Since the appeals are from the same decision,
and the issues raised in all three appeals are the same, the same reasons will
apply to all of these appeals; a copy of these reasons will be filed in Court
file no. A-267-11, Court file no. A-272-11 and Court file no. A-273-11.
[2]
The
decision under appeal is that of Mr. Justice Simon Noël of the Federal Court
(the Federal Court Judge or the Judge), reported at Blerot v. Canada
(Minister of National Revenue - M.N.R.), 2011 FC 882, [2011] F.C.J. No.
1083 [Blerot], Siggelkow v. Canada (Attorney General), 2011 FC
884, [2011] F.C.J. No. 1085 [Siggelkow], and Lewry v. Canada
(Minister of National Revenue - M.N.R.), 2011 FC 883, [2011] F.C.J. No.
1084 [Lewry]. In this decision, the Federal Court Judge allowed the
respondents’ appeals from a decision of Prothonotary Lafrenière (the
Prothonotary), in which the latter struck out the notice of application filed
by each of the respondents in the Federal Court. In each case, the notice of
application challenged in various ways the issuance of a search warrant under
s. 487 of the Criminal Code, R.S.C., 1985, c. C-46. In Blerot
and Lewry the search warrants were issued by a justice of the peace for
the Province of
Saskatchewan,
while in Siggelkow, the warrant was issued by a judge of the Alberta Provincial Court.
[3]
The
notices of application are not identical, but they all seek substantially the
same relief:
1 - The quashing of the search warrants
issued in respect of each of the respondents, a declaration that the search
warrants are invalid, and a return of all material seized pursuant to the
warrants.
2 - A declaration that the Canada Revenue
Agency (CRA) is barred from invoking the search warrant provisions found at s.
487 of the Criminal Code in the course of investigating criminal
offences under the Income Tax Act, R.S.C.,
1985, c. 1 (5th Supp.), or under the Excise Tax Act, R.S.C., 1985, c. E-15, and
that it must instead use the search warrant provisions found at s. 231.3 of the
Income Tax Act AND AT S. 290 of the Excise Tax Act.
3 - A declaration that the CRA’s decision
to obtain search warrants under s. 487 of the Criminal Code is a violation
of the respondents’ rights under sections 7, 8, and 26 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter], and an order under s. 24 of the Charter excluding the
evidence obtained through the use of such warrants from any proceeding brought
against the respondents under the Income Tax Act or under the Excise
Tax Act.
4 - A declaration that the individuals
who obtained the search warrants were not duly authorized at law to apply for
such warrants.
[4]
I should
add that in summarizing the relief sought in the notices of application, I have
described the relief in legal terms rather than in the terms used by the
respondents. For the most part, this consists of substituting the phrase “a
declaration that” for the phrase “a decision as to whether”. I should also add
that the respondents’ primary argument, that the Minister should have applied
for search warrants under the specific enabling provisions of the Income Tax
Act as opposed to the general provisions of the Criminal Code, also
applies to proceedings under the Excise Tax Act, R.S.C., 1985, c. E-15.
However, since the warrant provisions of the two acts are materially the same,
I have referred only to the Income Tax Act.
[5]
Following
the filing of these notices of application, the Minister brought motions
pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106, to strike
the notices of application on the ground that they were bereft of any chance of
success. The motions were considered and allowed by the Prothonotary.
[6]
The
Prothonotary found that the CRA’s decision to apply for the search warrants was
an administrative and procedural step, and as such, was not subject to review: F.K.
Clayton Group Ltd. v. M.N.R., [1988] F.C.J. No. 1066, (1988) 24 F.T.R. 162
[F.K. Clayton Group].
[7]
The
Prothonotary also found that since the search warrants in question were issued
by either a justice of the peace for Saskatchewan or an Alberta
Provincial Court
judge, the proper forum in which to challenge the issuance of these warrants
was the provincial courts. The Prothonotary reasoned that the Federal Court
should decline to exercise its jurisdiction if the grounds for the applications
fell squarely within the jurisdiction of the provincial courts. In these cases,
he found the respondents had an adequate alternate remedy in the provincial
courts. He went on to add that the provincial courts had the jurisdiction,
either under the Charter or under the inherent jurisdiction of the
superior courts, to deal with allegations that the applications for the search
warrants were made arbitrarily or in bad faith, or for improper motives or
irrelevant considerations.
[8]
In the
end, the Prothonotary held that each of the notices of application should be
struck out as an abuse of process.
[9]
In
disposing of the appeal from this decision, the Federal Court Judge noted that
while the Prothonotary’s decision was legally and factually sound, it was to be
set aside, but only because the respondents raised issues on the appeal that
were not put before the Prothonotary.
[10]
The Judge
began by confirming that the Federal Court has no jurisdiction to review orders
of justices of the peace or provincial court judges. He agreed that the issuance
of search warrants under the Criminal Code is a matter that falls
squarely within the jurisdiction of the provincial courts.
[11]
He then
went on to consider the submissions that the respondents had not raised before
the Prothonotary. He found that what the respondents were challenging under
ss. 18 and 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7, was not
the issuance of the search warrants in and of themselves but rather, the CRA’s
written policy of applying for search warrants under s. 487 of the Criminal
Code, as opposed to under s. 231.3 of the Income Tax Act.
[12]
The Judge
agreed with the respondents’ submissions that a policy falls within the
expanding notion of what can be judicially reviewed under the Federal Courts
Act: May v. CBC/Radio Canada, 2011 FCA 130, [2011] F.C.J. No.
519.
[13]
The Judge
also agreed with the respondents’ submissions that the cases relied upon by the
Minister, such as F.K. Clayton Group, cited above, Canada (Royal
Canadian Mounted Police) v. Canada (Attorney General), 2007 FC 564, [2007]
F.C.J. No. 752, R v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624,
[1990] S.C.J. No. 83 [Multiform], and R v. Grant, [1993] 3 S.C.R.
223, [1993] S.C.J. No. 98 [Grant], were distinguishable. He found
support for this view in the fact that a previous version of the search warrant
provisions in the Income Tax Act had been found to be unconstitutional
by the Supreme Court of Canada in Baron v. Canada, [1993] 1 S.C.R. 416,
[1993] S.C.J. No. 6. He also appeared to be influenced by the fact that other
federal statutes were at issue in those cases, and not the Income Tax Act.
Finally, he felt that a better factual record was required in order to dispose
of the respondents’ applications.
[14]
The
Federal Court Judge concluded his analysis by noting that many claims in the
initial notices of application were to be struck for the reasons given by the
Prothonotary. However, he continued by noting: “the same cannot be said as to the underlying issue to be
tried, which is, the legality of CRA's practice (if it is that) of proceeding
under section 487 of the Criminal Code when applying
for search and seizure warrants.”
[15]
The
appeals from the decision of the Prothonotary were allowed and his order set
aside.
ANALYSIS
[16]
Though both the Prothonotary and the Federal Court Judge
alluded to the doctrine of collateral attack, neither of them addressed it
directly. That doctrine applies with full force and effect in these cases and
is a complete answer to the respondents’ notices of application. As a result, I
would allow the appeal.
[17]
The substance of the doctrine of collateral attack is set out
by the Supreme Court of Canada in R v. Wilson, [1983] 2 S.C.R. 594 at
pages 599-600:
It
has long been a fundamental rule that a court order, made by a court having
jurisdiction to make it, stands and is binding and conclusive unless it is set
aside on appeal or lawfully quashed. It is also well settled in the authorities
that such an order may not be attacked collaterally – and a collateral attack may
be described as an attack made in proceedings other than those whose specific
object is the reversal, variation, or nullification of the order or judgment.
Where appeals have been exhausted and other means of direct attack upon a
judgment or order, such as proceedings by prerogative writs or proceedings for
judicial review, have been unavailing, the only recourse open to one who seeks
to set aside a court order is an action for review in the High Court where
grounds for such a proceeding exist. Without attempting a complete list, such
grounds would include fraud or the discovery of new evidence.
[18]
On the facts of this case, the search warrants issued by the
provincial authorities are orders. Those orders must be challenged in the
forum in which they were made, using the procedure available in that forum. In
an application to the provincial courts to quash these warrants or to exclude
the evidence seized under the authority of these warrants, the applicability of
the decisions F.K. Clayton, Multiform and Grant can be
argued. However, it is not for the Federal Court, nor this Court to decide
these issues so as to purport to bind the provincial courts.
[19]
The only question remaining is whether the Federal Court
Judge erred in finding that there was, in this factual matrix, an issue that
was subject to review on administrative law grounds. The Federal Court Judge
framed that issue as “the legality of CRA’s practice (if it is that) of
proceeding under s. 487 of the Criminal Code when applying for search and
seizure warrants.” Based on the representations made to us by the two
respondents who appeared at the hearing of the appeal, it appears that the
question they seek to have determined is the legality of the CRA’s policy
of proceeding exclusively under s. 487 of the Criminal Code when
applying for search warrants.
[20]
Assuming without deciding that this question is otherwise
properly the subject of an application for judicial review, it is a question
which, in the circumstances of this case, should be decided by the courts
having jurisdiction over the warrants and whose issuance gave rise to these
proceedings. Those courts have full jurisdiction to deal with all questions
which could lead to a finding that the search warrants were not lawfully issued
or executed, including compliance with a departmental policy which is contrary
to law: see R. v. Collins, [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15,
at para. 23, R v. Porisky, 2012 BCSC 68, [2012] B.C.J. No. 93, R v.
2821109 Canada Inc., [1995] N.B.J. No. 435 , 167 N.B.R. (2d) 78 (C.A.). By
declining to exercise its jurisdiction, the Federal Court avoids creating a
situation in which it interferes with the review processes available in the
jurisdictions where the search warrants issued. In short the doctrine against
collateral attack and the policies which underlie that doctrine apply with full
force here.
[21]
The fact that the respondents’
applications in the Federal Court are not obviously doomed to failure on their
merits does not make them any less of a collateral attack.
[22]
In light of the fact that the Federal Court Judge was, by his
own admission, deciding a question that was not put to the Prothonotary, the
standard of review is that applicable to an appeal from a decision of a judge
of first instance on a question of law, that is, correctness: see Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. In my view, the
Federal Court Judge erred in law by not giving effect to the doctrine of
collateral attack in deciding whether the respondents’ notices of application
should be allowed to proceed.
[23]
In the result, I would allow the appeal in each file with
costs to the Attorney General throughout, set aside the order of the Federal
Court Judge, and restore the order of the Prothonotary.
"J.D.
Denis Pelletier"
Email this Content