Riordon J.:—In this application Brian A. Donovan requests an order to quash search warrants issued by the Provincial Court under the authority of the Criminal Code, R.S.C. 1985, c. C-46 that the documents seized as a result be returned and that the respondent be prohibited from applying for further search warrants without giving three days' notice of any such application.
It is necessary to review some of the background as it relates to the present matters that must be addressed. In 1989 the Department of National Revenue (The "Department") began investigating the affairs of the applicant, Brian A. Donovan, of Renous. As a result on June 25, 1990, Claudette Miller (formerly Claudette Richard) swore an Information to obtain three search warrants and on July 10, 1990 the warrants were issued by Mr. Justice Turney Jones under the authority of section 231.3 of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"). The warrants were executed by members of the Department on July 17, 1990 as authorized at the business premises of Mr. Donovan, at his residence and at the office of his accountant, H. M. Parlee and Company. Subsequently on August 3, 1990 Mr. Justice Jones issued an Order for the retention of the various items that had been seized.
Shortly after, on November 28, 1990, the Federal Court of Appeal in its decision in the case of Baron v. Canada, [1991] 1 C.T.C. 25, 91 D.T.C. 5055; amended [1991] 1 C.T.C. 408, 91 D.T.C. 5134 (F.C.A.); aff'd [1993] 1 S.C.R. 416, [1993] 1 C.T.C. 111, 93 D.T.C. 5018, declared section 231.3 of the Income Tax Act to be invalid as it was unconstitutional. Relying on this decision, counsel for Mr. Donovan requested officials of the Department to return the records that had been seized.
Rather than return the records, counsel for Mr. Donovan was informed that an application would be made to the Provincial Court for authority to reseize the records pursuant to section 487 of the Criminal Code. Even though such applications are usually made ex parte, notice was given to Mr. Donovan that the request would be made to Judge Stymiest of the Provincial Court on May 28, 1991 for the desired search warrants and the request was made as contemplated. Both parties were represented by legal counsel and Judge Stymiest reserved his decision. Eventually by decision dated October 1, 1991 the request of the Department for the search warrants pursuant to section 487 of the Criminal Code was denied. Judge Stymiest concluded that what was being requested was a simultaneous search warrant rather than a successive search warrant and that it should not be issued.
In the meantime on May 24, 1991 legal action was commenced in this Court on behalf of Mr. Donovan against the Department challenging the validity of section 231.3 of the Income Tax Act. Eventually that action was discontinued and another action was commenced on behalf of Mr. Donovan against the Department on July 9, 1991.
On December 2, 1991, Claudette Miller on behalf of he Department swore an Information before Judge Stymiest of the Provincial Court alleging that Mr. Donovan had contravened section 239 of the Income Tax Act.
On January 2, 1992, a notice of motion was filed with this Court requesting determination prior to trial of several questions of law including the question of the constitutional validity of section 231.3 of the Income Tax Act, the validity of the search warrants that had been issued on July 10, 1990, the effect of the searches carried out and for the return of the documents seized. That motion was to be heard on February 3, 1992.
On January 13, 1992 the parties to the criminal proceeding appeared before the Provincial Court and at the request of counsel for Mr. Donovan the matter was adjourned without plea.
On January 29, 1992, prior to the hearing of the motion, agreement was reached to adjourn the civil proceeding and the criminal proceeding pending an anticipated decision of the Supreme Court of Canada in the Baron, supra, case which had been appealed. A letter purporting to set out the terms of the agreement to adjourn was written by counsel for Mr. Donovan to counsel for the Department on January 27,1992 (a copy is set out at pages 71 to 73 of the Record). It must be noted that this document is not signed or acknowledged by counsel for the Department as was requested in the document. It is however to be noted that a copy of the letter is attached to the Information sworn to obtain the search warrant by Claudette Miller before Judge Stymiest on January 26, 1993 and that copy is signed by counsel for the Department.
Paragraphs (b), (c) and (d) of the letter state:
(b) we are prepared to agree to an adjournment sine die of the Motion currently before Justice Riordon and returnable on February 3, 1992 as well as deferring any further activity in the case until the Supreme Court decides the Baron/Kourtessis cases [[1993] 2 S.C.R. 53, [1993] 1 C.T.C. 301, 93 D.T.C. 5137]. The Defendants, Her Majesty The Queen in Right of Canada, Attorney General of Canada and Otto Jelinek in his capacity as Minister of National Revenue will file their notice of intent to defend but not their statement of defence.
(c) the Crown is prepared to consent to the seized documents being sealed under the authority and in the possession of the Director of the Saint John office of the Department of National Revenue, to be so kept during the adjournment period. The Crown undertakes that the seized documents together with any copies or summaries thereof will not be used during the adjournment period unless consented to in writing by the taxpayer. The taxpayer agrees to having the seized documents stored by the Department of National Revenue in any secure place.
(d) Once Baron/Kourtessis has been decided the Crown would have a period of ten days from the date of the decision to file its statement of Defence. Should the Supreme Court decision go against the Department of National Revenue it would forthwith return the seized documents to the taxpayer and the taxpayer would have the right to immediately apply to the Court for an order for return from the Department of all copies of seized documents together with all summaries, notes or diagrams taken from the documents, books, records, papers or other items seized from the taxpayer and also for an order ordering the destruction of all summaries, copies, notes or diagrams which have not been returned by the Department. Should the decision be in the Department's favour the taxpayer reserves the right to continue his challenge less the constitutional aspects of it.
A letter of the same date from counsel for the Department to counsel for Mr. Donovan states in part:
Further to our telephone conversation of Friday we have discussed your most recent proposal with Mr. Vince Pranjivan this morning and he has agreed that they are agreeable.
The decision of the Supreme Court of Canada in the Baron case, supra, was given on January 21, 1993, it upheld the earlier decision of the Federal Court of Appeal and confirmed that section 231.3 violates section 8 of the Charter and was therefore of no force or effect.
Immediately after the decision of the Supreme Court of Canada was handed down, counsel for Mr. Donovan requested that the documents that had been seized under the authority of the search warrants of July 10, 1990 be returned. An exchange of letters by fax between Mr. Oley, counsel for Mr. Donovan, and Mr. Logan, for the Department followed. On January 21, 1993, Mr. Oley wrote Mr. Logan, paragraph 2 of that letter states:
Pursuant to paragraph (d) of our agreement as set out in my faxed correspondence to you dated January 27, 1992 and as accepted by your faxed correspondence to me under date of January 27, 1992 I am hereby formally requesting and do request on behalf of my client, Brian Donovan, the immediate return to this office to the attention of Brian Donovan all documents seized pursuant to the alleged search warrants issued on July 10, 1990 pursuant to section 231.3 of the Income Tax Act, S.C. 1970-71-72, c. 63 as amended by S.C. 1986, c. 6, s. 121, which were executed on July 17, 1990 at the personal and business premises of Brian Donovan and also at the offices of his accountant, H. M. Parlee and Company together with all copies of the seized documents together with all summaries, notes or diagrams taken from the documents, books, records, papers or other items seized pursuant to the said alleged Warrants.
On January 22, Mr. Logan replied:
We acknowledge receipt of your letter of January 21, 1993. We shall confirm the details for the return of the documents early next week. We trust this is satisfactory.
On January 25, Mr. Oley wrote:
This acknowledges receipt of your faxed letter dated January 22, 1993.
Please let us know when we shall have the return of the documentation set out in my letter of January 21, 1993.
On January 25, Mr. Logan replied:
Further to your letter of today's date we shall be returning the documentation on Tuesday, January 26, 1993.
Further to our agreement of last January, we do not intend to return our working copy, extracts, summaries, etc. We note from my review of your statement of claim that subparagraph 22(e) through (h) deals with this aspect of the dispute and would appreciate your Clarification as to whether you intend to pursue this aspect of your claim or start a fresh action.
Mr. Oley, under the impression that all documents would be returned to his law office in Fredericton, informed Mr. Donovan that the documents would be returned to that location on January 26th and that he should be present to take possession of the documents. On January 26 Mr. Donovan accordingly went to Fredericton. The documents were not however returned to Fredericton.
On the morning of January 26, 1993 members of the Department purported to return the seized records. Those that had been taken from Mr. Donovan's accountant were returned there and those that had been seized from Mr. Donovan were delivered to the 1990 location of Mr. Donovan's business office in Renous at somewhere around 9:35 a.m. This building, where the documents were delivered that morning, had not been used as an office by Mr. Donovan for approximately two years and in January 1993 was being used as a garage. It is located approximately one mile from the residence of Mr. Donovan and his then business office. When the members of the Department arrived at this garage, they met a Mr. Floyd Jardine of Quarryville and Stephen Gillespie of Blackville who at the time were doing maintenance work on a grader. Mr. Gillespie is employed by N.B.P. Enterprises Ltd. as a mechanic and welder and Mr. Jardine is employed as a machine operator by Algo Enterprises Ltd. The documents were left at the garage but not for ong.
Even though the original seized documents were returned in the aforementioned manner, copies of the records that had been made were not returned.
At around 10:00 a.m. or some 15 minutes after the documents had been left in the garage, another representative of the Department and a police officer arrived at the garage and again seized all the documents that had just been delivered.
They were seized under the authority of a search warrant issued by Judge Stymiest of the Provincial Court earlier that morning.
Documents that had been seized at the offices of H. M. Parlee and Company under the authority of the July 10, 1990 search warrant were returned at somewhere between 8:30 and 9:00 a.m. on January 26, 1993 and reseized at approximately 10:00 to 10:15 a.m. the same day under the authority of a search warrant issued by Judge Stymiest of the Provincial Court pursuant to the authority of the Criminal Code.
Claudette Miller of the Department in the early morning of January 26 attended at the Provincial Court to apply for search warrants to search the business premises of Mr. Donovan and the offices of H. M. Parlee and Co. On being advised that the records previously seized had been returned, an application was made to the Provincial Court pursuant to the provisions of the Criminal Code for two search warrants. Ms. Miller received final confirmation of the return of the records at 9:35 a.m. and swore the Information at 9:37 a.m. to obtain the two new search warrants. The search warrants were obtained shortly after and immediately executed.
Mr. Donovan's solicitor on later being advised immediately informed counsel of the Department that an application would be made to this Court to quash the search warrants and on February 16 the notice of application that must presently be dealt with was filed.
On February 18, 1993 the Department made the reports to the Judge of the Provincial Court as contemplated by section 490 of the Criminal Code and obtained two orders for the detention of the seized records.
With this background it is necessary to address the application filed on behalf of Mr. Donovan to quash the warrants issued on January 26, 1993 and the request for the return of the documents seized under the authority of the warrants and also the request to prohibit further applications for search warrants without three days' notice.
The written submission filed on behalf of the Department raises the jurisdiction of the Court to deal with the present application. At the hearing however this question was not pursued and counsel for the Department acknowledged that this Court does have the jurisdiction to address the present application. This question of jurisdiction has been addressed by the Supreme Court of Canada in the decision of Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, [1993] 1 C.T.C. 301, 93 D.T.C. 5137. At page 112 (C.T.C. 326, D.T.C. 5156) of that decision Mr. Justice Sopinka said:
Searches and seizures involve the most serious invasion of privacy. Search warrants issued under the Criminal Code can be attacked by motion to quash brought before the superior court of the province. The grounds include failure to disclose, lack of specificity, the existence of less intrusive investigatory procedures and the like. See Schumiatcher v. A.-G. (Sask.) Re: Search Warrant (1960), 34 C.R. 154, 33 W.W.R. 134, (Sask. Q.B.), Re Church of Scientology, et al. v. The Queen (No. 6), (sub nom. R. v. Church of Scientology of Toronto) 30 C.R.R. 238 (Ont. C.A.) supra, and R. v. Sismey (1990), 55 C.C.C. (3d) 281, 1 C.R.R. (2d) 381 (B.C. C.A.) I would be surprised if this procedure were not available to a citizen who is subject to a search under the ITA.
At page 115 (C.T.C. 328, D.T.C. 5157) he said:
The superior courts have jurisdiction to entertain such applications even if the superior court to which the application is made is not the trial court. However, a superior court has a discretion to refuse to do so unless, in the opinion of the superior court, given the nature of the violation and the need for a timely review, it is better suited than the trial court to deal with the matter. See Mills v. The Queen, [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 supra, per Lamer J. at pages 891-96 (D.L.R. 196-200), and per LaForest J. at pages 976-77, 3 ’d by the full Court in R. v. Smith, [1989] 2 S.C.R. 1120, 52 C.C.C. (3d) 97 supra, at pages 1129-30 (C.C.C. 104). The superior court would therefore have jurisdic- tion to entertain an action for a declaration seeking this kind of relief but subject to the same discretion to refuse to exercise it. The superior court's discretion to decline to exercise its jurisdiction on the basis set out in Mills and Smith, supra, is buttressed by the discretionary nature of declaratory relief by virtue of which the court can refuse to entertain such an action for a variety of reasons. The Court is justified in refusing to entertain the action if there is another procedure available in which more effective relief can be obtained or the court decides that the legislature intended that the other procedure should be followed.
I have decided in these circumstances that I should exercise discretion and entertain this application. Although it is not a matter specifically dealt with in the present application, it is without question now clear in light of the Baron decision above referred to that the search warrants that were issued by Mr. Justice Jones pursuant to section 231.3 of the Income Tax Act are invalid and therefore of no force or effect. The Supreme Court of Canada in the Baron case concluded that section 231.3 of the Income Tax Act violated section 8 of the Charter. The warrants issued by Mr. Justice Jones on July 10 and executed on July 17, 1990 have remained in effect to the present time. Perhaps it may only be a formality, and the Department has, as I understand their submission, taken the position that it has abandoned these search warrants. Nevertheless, they remain outstanding search warrants issued by a Court Order that are still in effect and which have not been rescinded, modified or quashed. To address this situation I direct that the search warrants of July 10, 1990 be quashed and order that all documents seized thereunder and any copies made of those documents be returned to Mr. Donovan.
I have some difficulty with the manner in which the documents seized under the authority of the search warrants of July 10, 1990 purport to have been returned to Mr. Donovan and were returned to his former accountant on January 26, 1993. By an Order of the Court of Queen's Bench of Mr. Justice Jones entitled "Order For Retention" dated August 3, 1990 it was the Court Order that the documents that had been seized, which are listed, be detained by the Minister of National Revenue. That Order stated:
IT IS ORDERED that the documents and things referred to in Appendix “B” attached be retained by the Minister [of] National Revenue in accordance with subsection 231.3(6) of the Income Tax Act.
Subsection 231.3(6) of the Act provides:
231.3(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.
Subsection 231.3(7) provides:
231.3(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.
The manner in which the documents seized are purported to have been returned to Mr. Donovan and were returned to the office of Mr. Parlee are not in compliance with the Court retention order in effect and violate the provisions of subsection 231.3(6). This section requires that the Minister shall take reasonable care to ensure that the documents are 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 purposes of a criminal proceeding. There is no evidence of any application, summary or otherwise, as is contemplated by subsection 231.3(7) to request permission of a judge to return any document to the person from whom it was seized. Surely to return seized documents in the manner that they were returned without getting permission to do so from the Court which ordered them to be retained until certain specified events would occur as is provided for in the Statutes contravenes the retention order of the Court, the provisions of the Act and the mandatory obligation imposed on the Minister to take reasonable care to ensure that they be preserved. The retention order of the Court should and I believe would remain in effect irrespective of any agreement reached between counsel for the respective parties with respect to the return of seized documents until such time as the Court would sanction the agreement.
It is submitted by counsel for Mr. Donovan that in respect to the search warrants issued by Judge Stymiest in January 1993 the officials of the Department failed to make full disclosure to Judge Stymiest. More specifically it is alleged that they failed to disclose the agreement that had been reached to return the seized documents to the office of Mr. Donovan's lawyer in Fredericton. Also that they failed to disclose that the earlier Order of Mr. Justice Jones for the issuance of search warrants was still in effect and had not been rescinded. It is also alleged that they did not disclose that the documents were returned to the former office location of Mr. Donovan and not to his then office or his residence. It is also submitted that the procedure used constituted an abuse of process and that as the search warrants of July 10, 1990 were still technically in effect, the search warrants issued by Judge Stymiest on January 26 were simultaneous and not successive. It is argued that even if the Department says it abandoned the search warrants issued by Mr. Justice Jones and purported to return originals, it did not return all copies of the documents that had been made.
It is submitted on behalf of the Department that its officials have followed the rules and have acted in good faith and that the rules were changed by the Court decision in the Baron case, supra. It is submitted that although counsel for Mr. Donovan wanted the seized documents returned to his office in January 1993 after the decision of the Baron case was made, the Department officials had only agreed to return the documents to the taxpayer and that the return of the documents on January 26 was a bona fide return. It is submitted that the Department intended to return the documents and immediately reseize them and that the procedure set out in the Criminal Code to obtain a search warrant was properly followed. Counsel for the Department argues that the search warrants of January 26, 1993 were successive and not simultaneous, there was no material nondisclosure in the Information to obtain them, there was no abuse of process, the matter was not res judicata and there were sufficient grounds to support the issuance of the warrants.
The return of documents seized while keeping copies of the documents as was done in the matter before me is not a complete and effectual return of the documents that had been seized. The return of documents seized from the office of Mr. Donovan and from his residence to a garage, even though it was the former location of Mr. Donovan's office and to leave them there with individuals working on a grader and not ascertaining who these people were and making a determination that they had authority to receive such documents, is questionable practice and at least careless; and would not constitute a return of the seized documents to Mr. Donovan. Even Mr. Terry LeBlanc of the Department who was involved in the return of the documents was surprised. In his affidavit of March 11th he says:
Upon entering what I remembered as the office I was surprised to find it virtually empty.
Failure to at least get a receipt from someone in a position of authority authorized to act on behalf of Mr. Donovan acknowledging receipt of the documents when they were returned in the fashion that they were is to say the least somewhat unusual. It is noted that a receipt was requested of and obtained by Mr. Parlee when documents were returned to his accounting office. If an agreement had been reached to return the documents to the offices of Mr. Donovan's solicitor, as had been understood by Mr. Oley, rightly or wrongly, to return the documents in the fashion that they were without at least notifying Mr. Oley cannot be considered to be entirely straightforward. In these circumstances I have difficulty in concluding and cannot accept that the documents that had been seized from Mr. Donovan had been returned to him.
The sworn Information of Claudette Miller of January 26, 1993 should be examined closely. Paragraph 7 states that the Department agreed to return the records seized under authority of the warrants of July 10, 1990 if the Supreme Court upheld the Baron decision. A copy of the written agreement of January 27, 1992 signed by both solicitors is attached to the Information. Paragraph 9 of that Information is as follows:
9. On January 26, 1993, I was informed by Terry LeBlanc that he along with Greg Boudreau, officers of the Department of National Revenue, Taxation, delivered the documents or things as listed in Appendix B of Exhibit D-1 and Appendix B and D of Exhibit D-2 attached to this Information, to the business premises of Brian A. Donovan, in Renous, N.B., as described in paragraph "a" of PLACES TO BE SEARCHED.
A copy of the Information sworn on June 25, 1990 in support of the request for the warrants issued on July 10, 1990 is attached to the Information of Ms. Miller of January 26.
The Information of January 26, 1993 makes no mention of the action instituted in this Court or the application outstanding. However the agreement concluded on January 27, 1992 and the letter confirming that agreement is attached and reference is made in that letter of the adjournment of the motion that had been made to the Court of Queen's Bench. The Information does not disclose any communications between the parties relating to the return of the documents after the Supreme Court of Canada decision in Baron was handed down and the request made for the return of the documents made by counsel for Mr. Donovan. The Information does not make any reference to the status of the outstanding retention order of Mr. Justice Jones of August 3, 1990 other than to say that the documents seized pursuant to the search warrants were ordered to be retained by Mr. Justice Jones pursuant to subsection 231.3(6) of the Income Tax Act. Copies of the retention orders were attached. The Information does not disclose the specific details of the return of the seized documents to the business premises of Mr. Donovan if one could conclude that they were in fact returned to his business premises. It is certainly clear now that the documents were not returned to his business premises but to a garage where his business office premises were formerly located. It is now clear that paragraph 9 of the Information quoted above lacks detail, lacks specificity and its correctness is questionable. The Information does not specifically disclose that copies of all the documents that were seized were kept. The Information does not specifically state that the earlier search warrants had been abandoned. The Information does not specifically disclose that documents seized from the residence of Mr. and Mrs. Donovan were not returned there and why they were not returned there. The Information states that documents listed in the Appendices were returned. There is no indication that these were all of the documents seized and retained. In any event, as I stated earlier, no mention is made that copies were retained. It was not disclosed that the documents seized had not been returned personally to Mr. Donovan or to an authorized representative.
In the Kourtessis decision, supra, at page 112 (C.T.C. 326, D.T.C. 5156) Mr. Justice Sopinka said: (quoted in part earlier at page 430 of this decision)
Indeed, in an earlier proceeding in this case, warrants were quashed by Proudfoot J. for lack of disclosure and specificity. Searches and seizures involve the most serious invasion of privacy. Search warrants issued under the Criminal Code can be attacked by motion to quash brought before the superior court of the province. The grounds include failure to disclose, lack of specificity, the existence of less intrusive investigatory procedures and the like. See Shumiatcher v. A.-G. (Sask), Church of Scientology, supra, and K. v. Sismey, supra.
The purported return of the seized documents to Mr. Donovan to unknown individuals at a garage which obviously was not his office business premises cannot be said to be an actual return of the seized documents to Mr. Donovan. The statement contained in the Information before Judge Stymiest that the documents that had been seized had been returned to "the business premises of Brian A. Donovan" is misleading and as said above its correctness is questionable. Without question the document, that is, the Information was drafted and prepared in advance in anticipation that the documents would be returned. It was not corrected or at least clarified in the haste to obtain new search warrants. Within minutes of the return of the seized documents the Information was sworn. It is difficult to say if this misleading and incorrect information was something that was done deliberately or inadvertently. I am of the view that it was done inadvertently.
As I see it this misleading statement in the Information is sufficiently significant and sufficiently misleading and incomplete in specifics that the proper course is to quash the search warrants. This I believe is only proper in light of all of the above detailed failure to disclose and lack of specificity. Particularly so in light of the fact that even though an unsuccessful attempt was made to return original seized documents yet copies were kept and the Information failed to at least disclose to the Judge to whom the application was made that copies were kept.
Also as I see it the Department obtained two new search warrants on January 26, 1993 when in actual fact the validity of the first warrants that had been obtained from Mr. Justice Jones in July of 1990 were not yet finally decided upon and were still legally and technically in effect irrespective of the agreements of counsel and decisions of other Courts in other cases. The new search warrants that were issued were simultaneous search warrants and not successive search warrants. Reference can be made to the text, The Law of Search and Seizure, 2nd Edition, by James A. Fontana, page 192.
It is also quite significant as I see it that the Federal Court of Canada decision in Baron v. Canada was decided on or about November 28, 1990; a few months after the documents were seized from Mr. Donovan and though an application for warrants was denied by Judge Stymiest in October 1991, the application for the new search warrants was only made some two years after the trial decision in Baron. Delay was addressed in the case of R. v. Peel Air Services Ltd., [1993] 1 C.T.C. 71, 92 D.T.C. 6553 (Ont. Gen. Div.); aff'd June 23, 1993, Doc. CA C13199 (Ont. C.A.) (unreported), where the Crown sought to introduce documents that had been seized by a search warrant issued under the authority of [former] subsection 231(3), at page 73 (D.T.C. 6554) the following appears:
Not surprisingly, Judge Tabach held, [unreported] (filed with Registrar Oct. 20, 1992) at page 182 of his ruling, that "some action must be taken to legitimize conduct that is subsequently held to be inappropriate”, and excluded the documents under s. 24 of the Charter. Refusing to save their admission under s. 1, he stated at page 181 of his ruling as follows:
In my view, the administration of justice will be brought into disrepute by judicial condonation of unacceptable action or inaction by prosecutorial agencies. Permitting evidence that had been unlawfully obtained and held where immediate specific action was possible to legitimize the seizure and retention, in my view, would bring the administration of justice into disrepute. This Court cannot condone the unlawful retention of documents of any person facing a charge even though the unlawful retention and possession was undertaken without evil intent or without malice.In this case, the retention of the documents, on the evidence before me, is attributable to nothing more than inaction, which I suspect in itself is or was caused by a number of factors. There is nothing in the evidence to indicate that there was any mala fides or blatant conduct or unfair tactics by Revenue Canada or the prosecution in the general sense. The short point, however, is that documents were in the possession of the investigatorial and prosecutorial authorities for a long period of time without judicial sanction or authorization.
In conclusion I therefore direct that the two search warrants issued by His Honour Judge Stymiest on January 26, 1993 be quashed. Also I direct that all documents seized by the Department under the authority of the two search warrants together with all copies of those documents be forthwith returned to Mr. Brian A. Donovan or his authorized agent and to the offices of his accountant, H. M. Parlee, respectively. As stated earlier, the warrants issued on July 10, 1990 should also be quashed and the retention order of August 3, 1990 should be and is terminated and cancelled. All documents seized under the authority of the July 1990 search warrants and copies of any documents made of those records are also to be forthwith returned to Mr. Donovan and to H. M. Parlee and Company.
The request that notice be given in the event of any other application for a search warrant is denied.
Order to quash allowed.
Email this Content