Stone
J.A.:—The
appellant
seeks
to
have
an
order
of
the
Trial
Division
of
September
29,
1992
set
aside
on
the
basis
of
alleged
errors
committed
by
that
division
in
striking
out
his
statement
of
claim
which
was
filed
July
8,
1992.
The
essence
of
his
alleged
cause
of
action
appears
in
paragraphs
3-7
of
the
statement
of
claim:
3.
The
plaintiff
states
that
on
or
about
October
3,
1986
an
official
of
the
Government
of
Canada-
Department
of
National
Revenue
unlawfully
subverted
section
63,
R.S.C.
1970
(section
109,
R.S.C.
1985)
Excise
Tax
Act,
hereafter
referred
to
as
section
63.
This
was
done
without
lawful
authority
and
without
formal
approval
by
the
Parliament
of
Canada.
4.
The
plaintiff
contends
the
unlawful
subversion
of
section
63
of
the
Excise
Tax
Act
has
unlawfully
authorized
excess
sums
of
money
collected
under
colour
of
this
Act
not
being
paid
to
The
Queen
as
the
Act
requires,
and
not
returned
to
the
purchasers
of
goods
from
whom
the
excess
sums
of
money
were
collected.
5.
The
plaintiff
contends
as
a
result
of
the
foregoing,
excess
sums
of
at
least
$1
billion
in
excess
money
has
been
received
and
illegally
retained
by
licensees.
6.
The
plaintiff
states
the
unlawful
subversion
of
section
63
was
brought
to
the
attention
of
senior
officials
of
the
Department
of
National
Revenue
in
accordance
with
the
requirements
of
the
Financial
Administration
Act.
7.
The
plaintiff
contends
a
tax
consulting
firm
comprised
of
former
senior
officials
of
the
Department
of
National
Revenue
Ottawa,
Ontario
was
a
major
beneficiary
from
the
unlawful
subversion
of
Section
63.
His
claim
for
relief
then
follows
and
reads:
(A)
A
refund
in
the
amount
of
$1
billion
is
claimed
by
the
plaintiff
on
behalf
of
all
purchasers
of
goods
from
whom
excess
sums
of
money
was
collected
as
a
result
of
the
unlawful
subversion
of
section
63.
B}
Interest
and
penalty
on
the
principal,
applied
at
the
same
rate
the
Government
of
Canada-Department
of
National
Revenue
imposes
on
the
public.
(C)
The
sums
claimed
in
the
foregoing
be
placed
in
a
trust
account
administered
by
an
independent
authority,
approved
by
the
plaintiff,
for
disbursement
to
the
purchasers
of
goods
from
whom
excess
sums
of
money
was
collected
as
a
result
of
the
unlawful
subversion
of
section
63.
(D)
All
costs
associated
with
this
action.
(E)
The
plaintiff
demands
immediate
disciplinary
action
and
criminal
charges
be
initiated
against
all
senior
officials
of
the
Department
of
National
Revenue
who
initiated,
authorized
and
condoned
the
unlawful
subversion
of
section
63,
Excise
Tax
Act.
(F)
The
plaintiff
demands
a
thorough
investigation
by
an
independent
authority
approved
by
the
plaintiff
be
conducted
into
the
relationship
between
senior
officials
of
the
Department
of
National
Revenue
and
former
senior
officials
of
the
Department
of
National
Revenue
to
establish
the
extent
of
influence
this
relationship
had
on
the
unlawful
subversion
of
section
63
and
enforcement
of
the
Excise
Tax
Act
in
general.
(G)
The
plaintiff
demands
a
thorough
audit
investigation
of
Department
of
National
Revenue
accounting
books,
records
and
documents
relating
to
the
foregoing
be
conducted
by
an
independent
authority
approved
by
the
plaintiff.
The
learned
trial
judge
in
making
the
order
that
is
here
under
attack
found
as
follows:
Analysis:
It
is
unnecessary
for
me
to
determine
the
issue
of
standing
in
this
case,
as
I
have
concluded
that
the
statement
of
claim
discloses
no
cause
of
action
against
The
Queen.
Mr.
Weiten
has
brought
his
action
against
The
Queen,
and
yet
it
is
clear
from
a
review
of
his
written
materials,
and
from
his
submissions
made
here
in
Court
today,
that
the
moneys
allegedly
collected
from
the
purchasers
of
goods
have
been
held
and
continue
to
be
held
by
the
companies
who
collected
these
sums
of
money.
As
a
result,
no
effective
relief
could
be
obtained
from
The
Queen
in
relation
to
alleged
overpayment
of
money
under
the
Excise
Tax
Act.
He
has
also
sought
in
his
statement
of
claim
relief
which
includes
disciplinary
action
against
senior
Departmental
officials,
and
he
requests
that
independent
investigations
and
audits
occur.
It
is
clearly
beyond
the
authority
of
this
Court
to
order
that
relief.
As
a
result,
F
am
striking
the
statement
of
claim
on
the
basis
that
it
discloses
no
reasonable
cause
of
action.
Even
if
I
am
wrong
on
this
basis,
I
would
also
have
concluded
that
Mr.
Weiten
does
not
have
standing
to
bring
the
action
either
on
the
basis
of
the
public
interest
standing,
or
in
his
capacity
as
the
litigant.
The
application
is
therefore
granted,
with
costs.
Despite
Mr.
Weiten’s
very
detailed
and
forceful
submissions,
we
are
not
persuaded
that
the
trial
judge
committed
any
reversible
error
justifying
this
Court’s
intervention.
The
appeal
will
therefore
be
dismissed.
Appeal
dismissed.
The
Minister
of
Revenue
of
Quebec,
The
Deputy
Minister
[Indexed
as:
143471
Canada
Inc.,
Quebec
v.]
Supreme
Court
of
Canada
(Cory
J.;
Sopinka,
lacobucci,
Lamer,
J
J
A.,
concurring.
La
Forest,
L’Heureux-Dubé,
McLachlin,
J
J.
A.,
dissenting),
on
appeal
from
decisions
of
the
Quebec
Court
of
Appeal
(1992),
32
A.C.W.S.
(3d)
226,
[1992]
R.D.F.Q.
44,
granting
the
motion
to
impound
seized
documents,
May
26,
1994
(Court
File
No.
22989).
Income
tax-Federal-Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)-40,
40.1,
231(3)-Canadian
Charter
of
Rights
and
Freedoms-7,
8-Quebec
This
was
an
appeal
from
a
judgment
of
the
Quebec
Court
of
Appeal
ordering
the
impoundment
of
documents
seized
by
the
Minister
of
Revenue
of
Quebec
under
section
40
of
An
Act
respecting
the
Ministère
du
Revenu
(A.M.R.),
until
the
constitutionality
of
sections
40
and
40.1
of
that
Act
is
determined.
In
the
first
case,
143471
Canada
Inc.,
the
main
cause
is
before
the
Quebec
Court
of
Appeal.
In
the
second
case,
Tabah,
the
main
cause
is
still
before
the
Quebec
Superior
Court.
The
issue
is
the
same
in
both
cases.
This
proceeding
concerned
the
impoundment
of
the
documents
seized
in
searches
of
the
business
and
residential
premises
of
the
respondents.
HELD:
The
fairer
way
to
resolve
the
opposing
claims
was
to
keep
the
documents
impounded
until
the
constitutionality
of
the
impugned
sections
of
the
Act
are
determined.
This
will
be
disadvantageous
to
the
Minister
but
as
between
the
parties
the
protection
of
the
individuals
should
prevail.
Appeal
dismissed.
Michel
Dansereau,
Judith
Kucharsky
and
Pierre
Gonthier
for
the
appellants.
Guy
Du
Pont,
Basile
Angelopoulos
and
Ariane
Bourque
for
the
respondents.
Cases
referred
to:
Manitoba
(Attorney
General)
v.
Metropolitan
Stores
Ltd.,
[1987]
1
S.C.R.
110,
38
D.L.R.
(4th)
321;
RJR-MacDonald
Inc.
v.
Canada
(Attorney
General),
[1994]
1
S.C.R.
311,
111
D.L.R.
(4th)
385;
Hadmor
Productions
Ltd.
v.
Hamilton,
[1992]
1
All
E.R.
1042;
Aetna
Financial
Services
Ltd.
v.
Feigelman,
[1985]
1
S.C.R.
2,
15
D.L.R.
(4th)
161;
Friends
of
the
Oldman
River
Society
v.
Canada
(Minister
of
Transport),
[1992]
1
S.C.R.
3,
88
D.L.R.
(4th)
1;
Thomson
Newspapers
Ltd.
v.
Canada
(Director
of
Investigation
and
Research,
Restrictive
Trade
Practices
Commission),
[1990]
1
S.C.R.
425,
67
D.L.R.
(4th)
161;
Canada
v.
Mc
K
inlay
Transport
Ltd.,
[1990]
1
S.C.R.
627,
[1990]
2
C.T.C.
103,
90D.T.C.
6243;
R.
v.
Wholesale
Travel
Group
Inc.,
[1991]
3
S.C.R.
154,
84
D.L.R.
(4th)
161;
Baron
v.
Canada,
[1993]
1
S.C.R.
416,
[1993]
1
C.T.C.
111,
93
D.T.C.
5018;
Zeppetelli
v.
Canada,
[1990]
2
C.T.C.
354,
90
D.T.C.
6461;
Edmonton
Journal
v.
Alberta
(Attorney
General),
[1989]
2
S.C.R.
1326,
64
D.L.R.
(4th)
577;
Rocket
v.
Royal
College
of
Dental
Surgeons
of
Ontario,
[1990]
2
S.C.R.
232,
71
D.L.R.
(4th)
68;
Kindler
v.
Canada
(Minister
of
Justice),
[1991]
2
S.C.R.
779,
84
D.L.R.
(4th)
438;
R.
v.
Généreux,
[1992]
1
S.C.R.
259,
88
D.L.R.
(4th)
110;
Reference
re
B.C.
Motor
Vehicle
Act,
[1985]
2
S.C.R.
486,
24
D.L.R.
(4th)
536;
Hunter
v.
Southam
Inc.,
[1984]
2
S.C.R.
145,
84
D.T.C.
6467;
Kourtessis
v.
M.N.R.,
[1993]
2
S.C.R.
53,
[1993]
1
C.T.C.
301;
93
D.T.C.
5137;
R.
v.
Dyment,
[1988]
2
S.C.R.
417,
55
D.L.R.
(4th)
503;
United
States
of
America
v.
Cotroni,
[1989]
1
S.C.R.
1469;
Air
Canada
v.
B.C.,
[1989]
1
S.C.R.
1161,
59
D.L.R.
(4th)
161;
Ameublement
Jeanne
Inc.
v.
Quebec
(Attorney
General),
April
15,
1987
(Sup.
Ct.
Montréal),
No.
500-05-003335-872
(unreported);
Brochetterie
Tino
Inc.
v.
Quebec
(Attorney
General),
[1989]
R.D.F.Q.
98;
Restaurant
le
Gourmet
grec
Inc.
v.
Séguin,
[1989]
R.D.F.Q.
80.
Cory
J.:—In
this
matter
I
have
had
the
pleasure
of
reading
the
careful
reasons
of
my
colleague
La
Forest
J.
I
am
in
complete
agreement
with
his
view
that
the
governing
principles
to
be
applied
in
this
case
are
set
out
in
the
reasons
of
this
Court
in
Manitoba
(Attorney
General)
v.
Metropolitan
Stores
Ltd.,
[1987]
1
S.C.R.
110,
38
D.L.R.
(4th)
321,
and
in
RJR-MacDonald
Inc.
v.
Canada
(Attorney
General),
[1994]
1
S.C.R.
311,
111
D.L.R.
(4th)
385.
These
decisions
indicate
that
in
considering
an
interim
measure
such
as
an
injunction
or
an
impounding
order
in
the
context
of
a
Charter
challenge
to
the
validity
of
the
underlying
law
a
Court
must
consider
three
factors.
The
first,
is
whether
a
serious
question
of
law
is
raised.
The
second,
is
whether
irreparable
harm
will
be
occasioned
to
the
applicant
if
the
interim
order
is
refused.
The
third,
requires
the
court
to
consider
and
weigh
in
the
balance
the
inconveniences
caused
to
the
parties
by
the
interim
order.
Further,
I
am
in
agreement
with
my
colleague
that
there
is
a
serious
question
of
law
raised
in
this
case.
It
is
in
the
application
of
the
factors
pertaining
to
irreparable
harm
and
the
balance
of
inconvenience
that
I
differ
with
his
views.
The
facts
giving
rise
to
this
appeal
are
set
out
in
the
reasons
of
La
Forest
J.
and
need
not
be
repeated.
The
nature
of
the
questioned
orders
At
the
outset
I
would
observe
that
the
orders
in
issue
on
this
appeal
are
discretionary
in
nature.
Like
all
discretionary
decisions,
they
should
be
accorded
a
measure
of
deference.
See,
for
example,
Hadmor
Productions
Ltd.
v.
Hamilton,
[1992]
1
All
E.R.
1042;
Aetna
Financial
Services
Ltd.
v.
Feigelman,
[1985]
1
S.C.R.
2,
15
D.L.R.
(4th)
161,
at
page
37
(S.C.R.);
Metropolitan
Stores,
supra,
at
pages
154-56;
and
Friends
of
the
Oldman
River
Society
v.
Canada
(Minister
of
Transport),
[1992]
1
S.C.R.
3,
88
D.L.R.
(4th)
1,
at
pages
76-77
(S.C.R.).
Since
I
am
of
the
view
that
the
decisions
of
the
judges
hearing
the
original
motions
were
correct,
I
need
not
consider
the
question
of
deference.
Irreparable
harm
There
are
a
number
of
matters
that
must
be
conceded
at
the
outset.
The
documents
seized
in
this
case
are
commercial
in
nature.
It
follows
that
there
cannot
be
the
same
privacy
interest
in
those
documents
that
there
would
be
in
personal
papers.
The
expectation
of
privacy
in
business
records
is
necessarily
low.
They
do
not
ordinarily
contain
the
type
of
personal
information
that
lies
at
the
heart
of
the
constitutional
protection
of
privacy.
Further,
it
must
be
recognized
that
the
state
must
have
the
power
to
regu-
late
business,
both
for
economic
reasons
and
in
order
to
provide
protection
to
the
vulnerable
individual
against
private
power.
This
was
set
out
with
great
cogency
by
La
Forest
J.
in
Thomson
Newspapers
Ltd.
v.
Canada
(Director
of
Investigation
and
Research,
Restrictive
Trade
Practices
Commission),
[1990]
1
S.C.R.
425,
67
D.L.R.
(4th)
161,
at
pages
517-18
(S.C.R.).
It
follows
that
since
the
search
in
this
case
was
made
pursuant
to
a
regulatory
statute
in
the
highly
regulated
field
of
restaurants
and
hotels
the
expectation
of
privacy
must
of
necessity
be
diminished.
Those
who
enter
a
regulated
field
must
accept
regulations
as
an
integral
part
of
their
business
operations.
It
has
been
recognized
that
there
is
a
significant
distinction
between
searches
and
seizures
effected
pursuant
to
a
regulatory
statute
and
searches
and
seizures
made
pursuant
to
the
Criminal
Code,
R.S.C.,
1985,
c.
C-46,
or
statutes
of
a
quasi-criminal
nature.
This
was
the
view
of
four
of
five
judges
in
both
Thomson
Newspapers
and
in
Canada
v.
McKinlay
Transport
Ltd.,
[1990]
1
S.C.R.
627,
[1990]
2
C.T.C.
103,
90
D.T.C.
6243.
In
R.
v.
Wholesale
Travel
Group
Inc.,
[1991]
3
S.C.R.
154,
84
D.L.R.
(4th)
161,
although
there
was
disagreement
as
to
its
application,
eight
of
nine
judges
affirmed
the
principle
enunciated
in
Thompson
Newspapers
and
McKinlay
Transport
that
there
is
a
relevant
and
significant
distinction
to
be
drawn
between
a
statute
that
is
criminal
and
one
which
ts
regulatory
in
nature
when
the
application
of
the
Canadian
Charter
of
Rights
and
Freedoms
to
those
statutes
is
to
be
considered.
In
Wholesale
Travel
Group,
I
attempted
to
indicate
the
basis
for
the
distinction.
The
distinction
can
properly
be
based
upon
both
the
licensing
concept
and
the
need
to
protect
the
vulnerable.
In
today’s
complex
society,
individuals
are
frequently
placed
in
vulnerable
situations.
An
individual
often
does
not
and
cannot
have
the
requisite
knowledge
or
training
to
determine
what
may
be
safe
and
what
is
dangerous.
For
example,
it
is
essential
that
there
be
regulations
to
protect
the
environment
from
poisonous
effluent;
to
protect
individuals
from
the
sale
of
dangerous
products
or
patent
medicines;
to
ensure
there
is
a
reasonable
standard
of
safety
in
mines,
factories,
construction
sites
and
all
workplaces;
to
ensure
that
food
is
prepared
in
sanitary
conditions
and
that
public
and
commercial
buildings
are
constructed
in
a
reasonably
safe
manner.
The
protection
of
all,
and
particularly
the
vulnerable,
by
regulation
requires
that
government
agencies
by
authorized
to
inspect
premises
and
to
review
books
and
records.
Those
who
enter
a
regulated
field
must
be
aware
of
those
regulations.
By
entering
that
field
they
have
accepted
that
their
business
will
be
regulated.
In
McKinlay
Transport,
the
majority
of
this
Court
held
that
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
’’Act”),
is
regulatory
in
nature,
since
in
the
words
of
Wilson
J.
"it
controls
the
manner
in
which
income
tax
is
calculated
and
collected".
There,
it
was
held
that
the
purpose
of
the
investigation
and
enforcement
provisions
of
the
Act
was
not
so
much
to
penalize
criminal
conduct
as
to
secure
compliance
with
the
provisions
of
the
Act.
The
legislation
at
issue
in
this
case
(An
Act
respecting
the
Ministère
du
Revenu,
L.R.Q.,
c.
M-31)
serves
the
same
purpose
as
the
Income
Tax
Act
and
like
that
statute
is
regulatory
in
nature.
There
1s,
then,
a
relatively
low
expectation
of
privacy
in
the
documents
seized
in
this
case.
With
all
of
that
stated
and
accepted,
there
still
remains
some
measure
of
privacy
in
commercial
documents.
They
will
inevitably
reveal
aspects
of
the
business
that
the
operator
would
rather
have
kept
private.
For
example,
one
supplier
may
be
paid
on
a
C.O.D.
basis
and
another
90
days
after
delivery.
These
arrangements
may
have
arisen
from
circumstances
which
prevailed
years
ago
and
have
continued
without
thought
of
change
to
the
present
time.
A
business
would
never
want
to
have
those
arrangements
made
public.
Similarly,
the
record
of
wages
paid
to
employees
may
reflect
a
higher
wage
rate
to
a
particularly
loyal
and
trusted
employee
than
to
another
carrying
out
the
same
function.
This
information
too
is
sensitive
and
something
that
the
business
operator
would
prefer
to
keep
private.
It
is
true
that
under
the
Act
respecting
the
Ministère
du
Revenu
the
government
employees
are
forbidden
to
disclose
information
obtained
from
the
documents.
However,
the
mere
fact
that
the
documents
have
been
seized
and
must
be
reviewed
by
the
government
officers
will
be
a
cause
for
concern
for
the
proprietor
of
the
business.
It
must
be
remembered
that
sections
40
and
40.1
of
this
Act
provide
for
searches
and
seizures
of
a
wide
range
of
documents
("books,
registers,
papers
or
other
things
that
may
be
used
as
evidence
of
an
offence
against
a
fiscal
law
or
regulation
made
by
the
government
under
such
law").
Thus,
the
government
may
seize
a
far
broader
range
of
documents
than
those
required
by
the
Act
and
its
regulations
to
be
prepared
and
maintained
by
the
business
enterprise.
As
well,
the
Act
allows
for
searches
and
seizures
of
documents
in
the
possession
of
third
parties
who
are
not
the
subject
of
an
investigation.
It
was
these
same
factors
that
led
four
of
the
five
judges
sitting
on
McKinlay
Transport
to
conclude
that
the
compelled
production
of
documents
provided
for
in
subsection
231(3)
of
the
Income
Tax
act
constituted
a
seizure
for
the
purposes
of
section
8
of
the
Charter
because
there
was,
for
the
proprietor,
a
privacy
interest
in
the
documents.
That
same
reasoning
is
be
applicable
to
the
facts
presented
by
these
cases.
The
purpose
of
an
interlocutory
stay
is
to
preserve
the
rights
of
applicants
(the
respondents
before
this
Court)
pending
a
final
determination
of
a
legal
question
which
will
affect
those
rights.
Here,
the
respondents
seek
not
the
return
of
their
documents,
but
simply
the
maintenance
of
the
orders
that
they
be
held
by
the
court
pending
the
determination
of
this
issue.
If
it
is
found
that
the
respondents
are
correct
and
that
the
searches
and
seizures
were
unconstitutional,
then
the
privacy
right
will
have
effectively
been
lost
as
a
result
of
the
unconstitutional
provisions
of
the
Act.
Small
as
it
may
be,
there
is
such
a
privacy
interest.
If
it
transpires
that
the
respondents
are
correct
in
their
constitutional
contention,
then
I
would
think
that
the
loss
of
that
privacy
interest
would,
in
itself,
constitute
irreparable
harm.
Yet
there
is
another
aspect
which
I
consider
to
be
far
more
significant
in
this
case.
Namely,
that
the
documents
were
obtained
by
means
of
intrusive
searches
of
residential
and
business
premises.
In
Baron
v.
Canada,
11993]
1
S.C.R.
416,
[1993]
1
C.T.C.
111,
93
D.T.C.
5018,
at
page
444
(C.T.C.
124,
D.T.C.
5027),
it
was
recognized
that
although
characterizations
such
as
"regulatory"
and
“criminal"
are
useful
for
purposes
of
Charter
analysis,
they
do
not
provide
a
complete
answer.
What
must
always
be
considered
are
the
values
which
are
at
stake
on
the
facts
of
the
particular
case.
Here,
it
is
true
that
the
search
was
made
pursuant
to
the
provisions
of
a
regulatory
statute
dealing
with
the
highly
regulated
business;
however,
a
court
must
still
be
concerned
with
the
nature
of
the
physical
searches
of
private
premises.
Obviously,
searches
of
private
property
are
far
more
intrusive
than
a
demand
for
production
of
documents.
The
greater
the
intrusion
by
the
searchers
into
the
business
premises
and
private
residences,
the
greater
weight
should
be
attached
to
the
provisions
of
section
8
of
the
Charter.
Thus,
although
the
privacy
interest
of
an
individual
in
business
documents
pertaining
to
a
regulated
field
is
relatively
low,
there
remains
a
very
real
and
significant
privacy
interest
in
maintaining
the
inviolability
of
residential
premises,
and
to
a
lesser
extent
of
business
premises.
This
was
recognized
by
Wilson
J.
in
McKinley
Transport,
supra,
at
page
649
(C.T.C.
114,
D.T.C.
6251):
The
greater
the
intrusion
into
the
privacy
interests
of
an
individual,
the
more
likely
it
will
be
that
safeguards
akin
to
those
in
Hunter
will
be
required.
Thus,
when
the
tax
officials
seek
entry
onto
the
private
property
of
an
individual
to
conduct
a
search
or
seizure,
the
intrusion
is
much
greater
than
a
mere
demand
for
production
of
documents.
The
reason
for
this
is
that,
while
a
taxpayer
may
have
little
expectation
of
privacy
in
relation
to
his
business
records
relevant
to
the
determination
of
his
tax
liability,
he
has
a
significant
privacy
interest
in
the
inviolability
of
his
home.
It
is
on
this
issue
that
I
find
that
I
must
take
a
position
diametrically
opposed
to
my
colleague.
The
documents
were
seized
from
homes
and
business
premises.
The
seizure
of
those
documents
cannot
be
divorced
from
the
intrusion
into
private
premises.
The
search
and
seizure
of
the
documents
are
part
and
parcel
of
the
same
sequence
of
events.
They
are
an
integral
part
of
the
whole.
It
should
not
be
said
that
once
the
documents
are
seized
it
is
no
longer
necessary
to
consider
the
intrusion
into
homes
and
offices.
The
documents
were
obtained
as
a
result
of
that
intrusion.
The
violation
of
privacy
interest
resulting
from
that
intrusion
cannot
end
with
the
removal
of
the
documents.
So
long
as
the
documents
are
held
by
or
on
behalf
of
the
appellants
there
is
a
continuing
violation
of
the
privacy
interest
of
the
respondents
in
their
residences
and
business
premises.
The
constitutionality
of
sections
40
and
40.1
of
An
Act
respecting
the
Ministère
du
Revenu
will
be
determined
in
the
principal
applications
to
quash
the
warrants.
Should
those
sections
eventually
be
found
to
be
unconstitutional,
then
the
searches
and
seizures
will
have
violated
the
privacy
interest
of
the
respondents
in
their
homes
and
offices.
The
government
will,
without
authority,
have
entered
the
premises
and
searched
for
and
seized
the
documents.
Thus
the
government
will
have
had
the
continuing
possession
of
the
documents
in
the
absence
of
any
authority
and
in
violation
of
the
Charter.
This,
it
seems
to
me,
would
constitute
irreparable
damage
to
the
respondents.
The
provision
for
the
impounding
orders
seems
eminently
fair
for
all
parties.
While
the
documents
are
impounded
they
cannot
be
altered
or
changed
in
any
way
by
the
respondents.
The
documents
will
thus
remain
protected
while
the
court
carries
out
the
judicial
function
of
determining
the
constitutionality
of
the
legislation.
There
could
be
no
question
of
the
fairness
and
efficacy
of
such
an
order
if
the
issue
could
be
determined
in
a
reasonable
time;
say
two
weeks
or
two
months,
or
even
six
months.
If
the
court
cannot
determine
the
issue
within
a
reasonable
time,
then
I
wonder
whether
it
is
the
respondents
or
the
government
that
should
suffer
as
a
result
of
the
delays.
In
my
view,
it
is
irrelevant
that
the
appellants
could
have
lawfully
gained
possession
of
these
documents
by
means
of
a
demand
made
pursuant
to
section
38
or
39
of
the
Act.
The
fact
remains
that
they
were
gained
through
searches
and
seizures
conducted
pursuant
to
sections
40
and
40.1.
The
appellants
chose
the
method
of
proceeding.
They
obtained
the
documents
by
means
of
intrusive
searches
of
residential
and
business
premises.
The
appellants
cannot
now
rely
on
the
fact
the
documents
might
have
been
obtained
in
some
other
way.
I
cannot
accept
the
appellants’
argument
that
since
section
69
of
the
Act
provides
for
the
confidentiality
of
tax
documents
this
section
will
protect
the
privacy
interests
of
the
respondents.
Although
section
69
protects
the
respondents
from
public
release
of
information
contained
in
the
documents,
it
does
not
protect
them
from
having
their
privacy
interests
in
their
homes
and
offices
violated
by
the
state.
This
is
the
very
interest
that
section
8
of
the
Charter
is
aimed
at
protecting.
Section
69
does
not
adequately
protect
the
respondents’
privacy
interests
in
the
documents.
Nor
can
I
accept
that
the
breach
of
the
privacy
interest
can
be
quantified
and
the
respondents
compensated
in
damages.
There
will
always
be
problems
in
any
attempt
to
quantify
and
to
compensate
the
breach
of
a
Charter
right.
The
nature
of
the
right
to
compensation
for
breaches
of
Charter
rights
is
still
highly
uncertain.
See
RJR-MacDonald,
supra,
at
page
342.
In
summary
then,
there
is
some
small
privacy
interest
in
commercial
documents.
The
seizure
by
way
of
intrusive
searches
of
business
premises
and
private
residences
was
and
continues
to
be
an
integral
part
of
the
seizure.
The
intrusive
nature
of
the
search
cannot
be
isolated
from
the
taking
of
the
documents.
It
is
highly
speculative
to
expect
that
a
breach
of
privacy
interest,
not
only
in
the
documents,
but
also
in
the
homes
and
offices
of
the
respondents,
could
be
compensated
in
damages.
Thus,
if
the
respondents
are
successful
in
the
principal
motions,
they
would
suffer
irreparable
damage
if
the
impounding
orders,
which
constitute
a
very
fair
disposition
of
the
matter,
were
to
be
set
aside.
It
is
then
necessary
to
consider
whether
the
public
interest
would
be
harmed
by
this
apparently
fair
solution.
Balance
of
inconveniences
It
is
under
the
balance
of
inconveniences
branch
of
the
Metropolitan
Stores
test
that
this
case
should
really
be
decided.
Obviously,
the
public
interest
is
a
very
important
consideration
in
determining
whether
an
interlocutory
impounding
order
should
be
set
aside.
What
is
being
considered
is
a
regulatory
scheme
dealing
with
the
restaurant
and
hotel
business.
All
who
enter
this
field
must
be
aware
of
the
governmental
regulations
and
know
that
they
must
comply
with
them.
Those
regulations
are
of
great
importance
for
the
health
and
safety
of
the
public.
Thus,
there
clearly
is
a
public
good
derived
from
the
regulations.
That
public
good
must
weigh
heavily
in
the
public
interest
in
considering
whether
the
interlocutory
impounding
orders
should
be
set
aside.
Further
the
public
good
which
results
from
the
collection
of
revenues
derived
from
taxation
statutes
is
obviously
a
factor
that
should
weigh
heavily
in
assessing
the
balance
of
convenience.
There
is
no
question
that
to
ensure
compliance
with
any
taxation
legislation
powers
of
investigation
and
enforcement
are
essential.
These
are
all
factors
to
be
taken
into
account
and
considered
to
be
favourable
to
the
position
of
the
Ministère
du
Revenu.
With
all
that
recognized,
it
still
must
be
determined
whether
the
holding
in
escrow
of
the
documents
seized
pending
the
determination
of
the
constitutional
validity
of
the
search
provisions
of
the
Act
should
be
upheld
in
light
of
the
remaining
privacy
interest
in
those
documents
and
in
the
homes
and
offices
of
the
respondents.
My
colleague
begins
his
analysis
of
the
balance
of
inconveniences
by
observing
that
the
impounding
orders
will
merely
delay
the
appellants’
opportunity
to
look
at
the
documents
seized.
Therefore,
he
continues,
it
can
be
presumed
that
the
respondents
will
at
one
time
or
another
suffer
the
inconveniences
related
to
the
investigation
by
the
Ministère
du
Reveneu
(i.e.,
the
appellants
seeing
the
documents
seized).
With
respect,
I
disagree.
His
approach
assumes
that
the
respondents
will
lose
the
main
applications
to
quash
the
warrants.
Any
remedy
in
the
nature
of
an
interlocutory
stay
or
impounding
order
is
predicated
on
the
possibility
that
the
party
applying
for
the
stay
will
eventually
be
successful.
Obviously,
if
the
respondents
are
successful
in
the
main
applications,
then
they
will
not
suffer
a
violation
of
their
privacy
interests.
As
I
have
observed,
the
impounding
orders
protect
both
the
integrity
of
the
documents
and
the
privacy
interest
of
the
respondents.
The
impounding
order
is
an
eminently
sensible
interlocutory
measure,
provided
that
it
does
not
harm
the
public
interest.
What
then
is
the
detriment
that
the
Ministère
du
Revenu
will
suffer
if
the
impounding
orders
are
upheld?
After
a
review
of
the
evidence
provided
in
this
case,
I
have
come
to
the
conclusion
that
the
Ministère
du
Revenu
and
the
public
interest
in
the
enforcement
of
taxation
statutes
would
suffer
little,
if
at
all,
from
the
granting
and
maintaining
of
these
orders.
Quite
simply,
the
evidence
does
not
support
the
appellants’
submission
that
the
orders
in
these
cases
will
paralyse
the
enforcement
of
taxation
statutes
in
the
province.
The
appellants
are
still
at
liberty
to
carry
out
searches
and
effect
seizures.
The
appellants
can
still
investigate
and
proceed
under
other
sections
of
the
Act,
specifically
sections
38
and
39.
Accepting,
for
the
purpose
of
argument,
the
appellants’
contention
that
this
case
will
act
as
a
precedent,
it
must
be
observed
that
there
are
so
few
searches
and
seizures
carried
out
each
year
under
taxation
statutes
in
the
province
that
this
case
is
still
one
of
exemption
and
not
of
suspension.
In
RJR-Macdonald,
supra,
it
was
held
that
the
onus
of
demonstrating
harm
to
the
public
interest
is
a
relatively
low
one
for
government
authorities
opposing
interlocutory
orders.
The
following
appears
at
page
346
(D.L.R.
409):
The
test
nearly
always
be
satisfied
simply
upon
proof
that
the
authority
is
charged
with
the
duty
of
promoting
or
protecting
the
public
interest
and
upon
some
indication
that
the
impugned
legislation,
regulation,
or
activity
was
undertaken
pursuant
to
that
responsibility.
Once
these
minimal
requirements
have
been
met,
the
court
should
in
most
cases
assume
that
irreparable
harm
to
the
public
interest
would
result
from
the
restraint
of
that
action.
[Emphasis
added.]
However,
the
public
interest
will
not
always
be
harmed
by
granting
a
stay,
particularly
where
the
case
in
one
of
exemption
rather
than
suspension
(at
page
346,
D.L.R.
409):
Consideration
of
the
public
interest
may
also
be
influenced
by
other
factors.
In
Metropolitan
Stores,
it
was
observed
that
public
interest
considerations
with
weigh
more
heavily
in
a
"suspension"
case
than
in
an
"exemption"
case.
The
reason
for
this
that
the
public
interest
is
much
less
likely
to
be
detrimentally
affected
when
a
discrete
and
limited
number
of
applicants
are
exempted
from
the
application
of
certain
provisions
of
a
law
than
when
the
application
of
the
law
is
suspended
entirely.
The
sole
adverse
effect
of
the
impounding
orders
is
that
the
appellants
will
not
be
able
to
see
the
documents
seized
until
the
constitutionality
of
the
legislation
is
determined.
The
evidence
indicates
that
this
may
delay
the
investigation
in
two
ways.
First
the
documents
seized
may
well
contain
evidence
which
can
be
used
in
the
prosecution.
Secondly,
the
documents
seized
may
enable
the
investigators
to
find
additional
evidence
in
the
form
of
witnesses
and
other
documents.
The
evidence
does
support
the
appellants’
submission
that
the
delay
caused
by
the
impounding
orders
may
make
it
more
difficult
for
the
investigators
to
find
more
evidence
in
the
form
of
other
documents
and
witnesses
when
the
orders
are
lifted.
However,
the
evidence
also
establishes
that
there
are
some
avenues
of
investigation
which
can
still
be
pursued
while
the
impounding
orders
are
in
place.
Further,
it
is
clear
that
very
few
searches
are
conducted
in
a
year.
Quebec
has
approximately
4.2
million
individual
taxpayers,
240,000
corporate
taxpayers,
223,000
employers,
and
302,000
"agents".
Despite
the
large
base
of
taxpayers,
the
Ministère
du
Revenu
of
Quebec,
carries
out
only
some
45
investigations
per
year
under
all
taxation
legislation.
Further,
only
some
25
searches
and
seizures
are
carried
out
in
these
45
annual
investigations.
These
statistics
clearly
indicate
that
the
impounding
orders
will
not
curtail
the
investigative
process.
The
appellants
further
allege
that
it
is
confronted
with
a
problem
by
the
systematic
granting
of
impounding
orders
with
respect
to
documents
seized
pursuant
to
section
40
of
the
Act.
The
appellants
refer
to
eight
cases,
including
the
two
which
are
the
subject
of
this
appeal.
Those
cases
are
as
follows:
Ameublement
Jeanne
Inc.
v.
Québec
(Procureur
général),
Sup.
Ct.
Montréal,
No.
500-05-003335-872,
granted
April
15,
1987;
Brochetterie
Tino
Inc.
v.
Québec
(Procureur
général),
Sup.
Ct.
Montréal,
No.
500-05-008861-898,
denied
July
17,
1989,
[1989]
R.D.F.Q.
98;
Restaurant
le
Gourmet
grec
Inc.
v.
Séguin,
Sup.
Ct.
Montréal,
No.
500-05-004272-892,
denied
April
5,
1989,
[1989]
R.D.F.Q.
80;
Courier
grec
du
Canada
Ltée
v.
Québec
(Procureur
général),
Sup.
Ct.
Montréal,
No.
500-05-002016-895,
denied
February
24,
1989;
the
present
appeal
143471
Canada
Inc.
and
Tabah;
Cuisines
Multiform
internationales
Inc.
v.
Angers,
Sup.
Ct.
Montréal,
No.
500-36-000033-921,
granted
January
31,
1992,
[1992]
R.D.F.Q.
46,
and
No.
500-05-002049-920,
granted
April
14,
1992,
[1992]
R.D.F.Q.
126;
Electro
Marine
Diesel
Inc.
v.
Québec
(Procureur
général),
Sup.
Ct.
Montréal,
No.
500-05-005278-922,
granted
April
28,
1992,
[1992]
R.D.F.Q.
125.
the
respondents
also
brought
to
the
Court’s
attention
Groupe
Shakiba
Inc.
v.
Québec
(Procureur
général),
Sup.
Ct.
Québec,
No.
200-05-001644-934,
granted
June
3,
1993,
[1993]
R.D.F.Q.
70.
These
cases
reveal
that
over
a
six-year
period,
of
nine
motions,
five
were
granted
(one
of
these,
Ameublement
Jeanne
Inc.
was
on
consent),
and
four
were
refused.
It
is
true
that
these
cases
reveal
that
no
applications
for
impounding
orders
have
been
denied
since
the
decision
of
the
Court
Appeal
of
Quebec
in
Zeppetelli
v.
Canada,
[1990]
2
C.T.C.
354,
90
D.T.C.
6461.
However,
it
is
also
true
that
they
do
not
disclose
a
problem
of
a
flood
of
impounding
orders.
The
figures
revel
not
a
flood,
but
at
most
a
very
slow
and
irregular
trickle.
I
cannot
accept
that
the
enforcement
of
taxation
statutes
in
the
province
of
Quebec
will
be
paralyzed
by
impounding
orders
when
the
scant
number
of
searches
and
seizures
is
compared
to
the
number
of
taxpayers
in
the
province.
It
is
not
without
significance
that
the
Superior
Court
judges
who
heard
the
initial
applications
for
the
impounding
orders,
specifically
found
that
there
was
no
evidence
that
these
orders
would
paralyse
the
investigation
and
prosecution
of
offences.
Marquis
J.
in
the
Tabah
case,
[1990]
R.D.F.Q.
90,
wrote
(at
page
96):
The
respondents
argue
that
if
the
present
application
is
granted
there
will
be
such
an
increase
in
this
type
of
action
that
eventually
enforcement
of
the
Act
will
be
paralyzed.
It
should
be
noted
in
this
regard
that
this
is
a
case
concerning
the
meals
and
hotels
tax.
The
evidence
is
that
the
Department
conducts
45
investigations
per
year
under
this
Act:
25
of
these
result
in
searches.
To
date
an
impounding
order
has
only
been
granted
once.
The
fear
of
Department
employees
is
understandable
but
is
not
based
on
any
factual
evidence
adduced.
[Emphasis
added;
translation.
]
Hannan
J.
in
143471
Canada
Inc.,
[1990]
R.D.F.Q.
104,
wrote
(at
page
109):
Clearly
this
affidavit
indicates
that
the
effect
of
a
stay
would
not
be
to
suspend
any
other
investigation
or
prosecution
of
the
applicants
[respondents
before
this
Court]
for
any
other
offence
in
respect
of
any
other
period.
It
would
not
have
the
effect
of
limiting
the
application
of
any
tax
legislation
to
any
taxpayer
or
even
to
the
applicants,
except
for
use
of
the
documents
subject
to
the
seizure.
[Translation.]
Further,
there
cannot
be
any
suggestion
that
the
orders
in
these
cases
were
granted
on
the
basis
of
judicial
"rubber
stamping".
The
cases
were
argued
extensively
and
careful
reasons
delivered.
For
example,
the
argument
in
the
Tabah
case
lasted
three
days
and
that
in
14347]
Canada
Inc.
lasted
two
days.
In
both
cases
the
reasons
given
for
the
orders
were
careful
and
detailed.
The
evidence
clearly
establishes
that
the
granting
of
impounding
orders
will
certainly
not
paralyze
the
enforcement
of
taxation
laws
in
the
province
of
Quebec.
Even
if
in
every
case
where
searches
were
carried
out,
impounding
orders
were
in
fact
issued,
this
would
not
have
the
effect
of
paralyzing
the
enforcement
of
taxation
legislation.
It
must
be
remembered
that
the
impounding
orders
do
not
prevent
searches.
They
do
no
more
than
delay
the
appellants
viewing
the
documents
seized.
It
cannot
be
said
that
the
impounding
orders
in
this
case
so
interfere
with
the
enforcement
of
taxation
laws
as
to
seriously
harm
the
public
interest.
I
think
it
unlikely
that
citizens
will
consider
that
they
can
break
taxation
laws
with
impunity
when
searches
and
seizures
can
still
take
place.
Obviously,
the
balance
of
convenience
would
be
very
different
if
the
respondents
were
seeking
to
have
the
carrying
out
of
searches
and
seizures
pursuant
to
sections
40
and
40.1
of
the
Act
enjoined.
Here,
the
respondents
seek
no
more
than
the
maintenance
of
the
impounding
orders.
Further,
like
La
Forest
J.,
I
would
conclude
that
the
limitation
period
for
laying
charges
will
not
run
while
the
impounding
orders
are
in
effect.
In
the
circumstances,
I
can
reach
no
other
conclusion
than
that
the
balance
of
convenience
favours
the
respondents.
I
agree
with
my
colleague
that
the
presence
or
absence
of
a
flood
of
applications
is
not
determinative
in
deciding
whether
an
interlocutory
order
should
be
granted.
The
nature
and
scope
of
the
order
requested,
as
well
as
the
circumstances
of
each
case
will
determine
whether
the
court
hearing
the
application
should
be
concerned
about
a
flood
of
similar
requests.
However,
those
concerns
cannot
be
based
on
mere
speculation.
In
my
view,
for
a
court
to
act
based
upon
those
concerns,
there
must
be
a
substantial
risk
that
there
will
be
a
flood
of
requests.
In
this
case,
the
evidence
simply
does
not
support
the
proposition
that
there
is
a
probability,
or
even
a
real
possibility,
let
alone
a
substantial
risk,
that
there
would
be
a
flood
of
similar
requests
as
a
result
of
granting
these
applications.
My
colleague
suggests
at
the
end
of
his
reasons
that
there
is
an
onus
on
an
application
for
an
interlocutory
stay
or
impounding
order
(the
respondents
before
this
Court)
to
show
that
granting
the
stay
or
impounding
order
forwards
the
public
interest.
The
discussion
in
RJR-MacDonald
at
pages
343-47
on
which
my
colleague
relies
does
not
hold
that
in
all
cases
an
applicant
for
a
stay
must
show
that
granting
such
an
order
is
in
the
public
interest.
As
a
general
rule
all
an
applicant
need
show
is
that
the
public
interest
is
not
hurt
by
the
order.
What
that
passage
considers
is
the
situation
where
an
applicant
argues
not
only
that
its
own
private
interest
but
also
the
public
interest
will
be
hurt
by
the
refusal
of
a
stay.
In
those
circumstances,
the
private
applicant
has
a
higher
threshold
than
the
government
respondent
to
establish
that
the
public
interest
is
served
by
its
position.
That
is
not
this
case.
While
in
a
general
sense
it
can
be
said
that
there
is
a
public
interest
in
preventing
unconstitutional
searches,
the
respondents
in
this
case
do
not
rely
on
that
public
interest
to
support
the
impounding
orders.
Rather,
they
rely
on
their
own
privacy
interests,
and
the
fact
that
the
public
interest
will
not
be
harmed
by
granting
the
impounding
orders.
Thus,
the
respondents
in
this
case
only
have
to
show
that
granting
the
orders
will
not
harm
the
public
interest,
not
that
granting
the
orders
will
forward
the
public
interest.
This
the
respondents
have
done.
In
summary,
the
evidence
establishes
that
there
is
no
serious
interference
with
the
enforcement
of
taxation
statutes
resulting
from
the
granting
of
the
impounding
orders.
There
is
then,
no
interference
with
the
public
interest
and
on
this
basis
the
impounding
orders
should
be
upheld.
Further,
even
if
it
can
be
said
that
in
a
certain
sense,
the
irreparable
harm
the
respondents
would
suffer
from
the
refusal
of
the
impounding
orders
is
small,
since
there
is
no
significant
interference
with
the
public
interest,
the
impounding
orders
should
be
upheld.
Delay
As
I
have
indicated,
if
the
judicial
system
could
deal
with
the
constitutional
issue
within
a
relatively
short
period,
there
would
be
no
question
that
the
impounding
order
would
be
the
fairest
and
most
reasonable
method
of
proceeding.
The
prosecution
would
be
protected,
since
the
documents
seized
would
be
in
safekeeping
and
could
not
be
altered
or
changed.
At
the
same
time,
the
respondents’
privacy
interest
in
the
documents,
small
though
it
may
be,
would
be
protected.
How
long
is
reasonable?
Obviously,
if
the
delay
were
a
matter
of
weeks
there
would
be
no
problem.
Just
as
clearly,
if
the
determination
could
be
made
within
six
months,
there
could
be
no
significant
prejudice
suffered
by
anyone.
It
seems
the
delay
will
be
longer
than
that
in
the
province
of
Quebec.
Judges
of
the
Trial
Division
and
the
Court
of
Appeal
work
well
and
diligently
under
the
pressure
of
an
ever
increasing
case
load.
Courts
and
judges
can
do
no
more.
Who
then
should
bear
the
responsibility
for
that
delay?
Surely
it
should
not
be
the
individual,
where
as
in
this
case,
a
serious
question
of
law
is
raised
as
to
the
constitutional
validity
of
search
and
seizure
provisions
the
legislation.
The
respondents
should
not
suffer
as
a
result
of
judicial
delay.
Ordinarily
I
would
trust
that
this
matter
could
be
expedited
and
disposed
by
the
Court
of
Appeal
of
Quebec
as
expeditiously
as
possible.
This
Court
has
been
advised
that
the
Court
of
Appeal
of
Quebec
granted
the
request
of
the
respondent
14347]
Canada
Inc.
to
expedite
the
hearing
of
the
appeal.
The
date
fixed
for
the
hearing
was
April
13,
1994
and
the
decision
was
reserved.
I
would
expect
that
the
application
of
Tabah
would
be
bound
by
this
decision.
As
a
result
it
is
not
necessary
to
consider
a
direction
to
expedite
the
hearing
of
the
appeal
in
143471
Canada
Inc.
or
the
application
in
Tabah.
Disposition
In
the
result,
I
would
dismiss
the
appeal
with
costs.
The
Chief
Justice:—I
am
generally
in
agreement
with
the
reasons
of
Justice
Cory.
With
respect,
however,
I
would
like
to
add
a
comment
concerning
the
factors
he
takes
into
account
in
assessing
the
respondents’
expectations
of
privacy.
It
is
now
well
settled
that
the
scope
of
a
right
guaranteed
by
the
Canadian
Charter
of
Rights
and
Freedoms
must
be
assessed
in
context.
This
method
was
first
explained
by
Wilson
J.
in
Edmonton
Journal
v.
Alberta
(Attorney
General),
[1989]
2
S.C.R.
1326,
64
D.L.R.
(4th)
577,
at
pages
1352-55,
and
again
applied
by
the
Court
in
Rocket
v.
Royal
College
of
Dental
Surgeons
of
Ontario,
[1990]
2
S.C.R.
232,
71
D.L.R.
(4th)
68;
Kindler
v.
Canada
(Minister
of
Justice),
[1991]
2
S.C.R.
779,
84
D.L.R.
(4th)
438;
and
R.
v.
Généreux,
[1992]
1
S.C.R.
259,
88
D.L.R.
(4th)
110.
It
is
thus
necessary
to
take
into
account
all
the
relevant
factors
which
indicate
the
importance
of
a
right
to
the
person
who
enjoys
it.
This
also
means
that
we
should
avoid
creating
rigid
categories
that
will
be
used
to
determine
the
scope
of
a
constitutional
guarantee
in
a
mechanical
fashion.
I
am
concerned
about
the
fact
that
Cory
J.
relies
on
the
so-called
"licensing”
theory
in
determining
the
extent
of
the
respondents’
expectations
of
privacy.
This
theory,
which
he
explained
in
detail
in
his
reasons
in
R.
v.
Wholesale
Travel
Group
Inc.,
[1991]
3
S.C.R.
154,
84
D.L.R.
(4th)
161,
at
pages
227-33
(S.C.R.),
essentially
holds
that
persons
engaging
in
"regulated"
activities
are
presumed
to
have
accepted
the
existence
of
such
regulation,
greater
intervention
by
the
state
in
their
activities,
and
a
lower
measure
of
constitutional
protection.
In
my
humble
opinion
this
theory
is
open
to
two
kinds
of
criticism.
First,
it
tends
to
give
credence
to
the
idea
that
there
is
a
clear
distinction
between
regulatory
offences
and
truly
criminal
acts,
and
that
there
are
two
different
definitions
of
the
rights
guaranteed
by
the
Charter
corresponding
to
these
two
categories
of
offences.
This
approach
reflects
a
formalism
alien
to
the
contextual
method.
The
distinction
between
criminal
acts
and
regulatory
offences
is
a
useful
and
very
real
one,
but
it
should
not
be
used
to
obscure
other
aspects
of
the
context
of
a
given
case.
That
is
precisely
what
is
likely
to
happen
if
we
presume
that
those
who
engage
in
"regulated"
activities
have
accepted
a
lower
level
of
constitutional
protection.
If
there
were
such
a
waiver
there
would
be
no
need
to
examine
the
other
aspects
of
the
context.
Second,
with
respect,
I
am
of
the
view
that
the
licensing
theory
is
based
On
an
erroneous
factual
premise.
It
cannot
be
said,
in
a
general
and
abstract
manner,
that
persons
engaging
in
regulated
sectors
of
life
in
society
expect
a
lower
level
of
constitutional
protection.
It
is
true
that
intervention
by
government
officials
is
generally
accepted
in
certain
areas
and
that
accordingly
the
expectations
of
privacy
of
persons
working
in
those
areas
may
be
lower.
However,
this
observation
cannot
be
transformed
into
a
general
rule
presuming
that
any
person
engaging
in
a
regulated
activity,
whatever
it
may
be,
automatically
acquiesces
in
a
limited
application
of
the
Charter
to
him
or
herself.
In
the
present
case
I
cannot
say
that
the
respondents
agreed
to
allow
the
state
to
search
their
homes
when
they
set
up
their
restaurant
and
hotel
businesses.
In
my
opinion,
there
is
no
factual
foundation
for
such
a
proposition.
We
may
also
take
the
example
of
driving
an
automobile,
a
highly
regulated
activity.
Can
it
be
said
that
people
who
obtain
a
driver’s
licence
thereby
accept
that
they
will
not
have
the
full
benefit
of
the
rights
set
forth
in
the
Charter?
I
do
not
think
so.
In
reality
the
only
factual
proposition
that
can
be
taken
as
valid
is
the
one
set
out
by
Cory
J.
at
page
3
of
his
reasons:
"Those
who
enter
a
regulated
field
must
accept
regulations
as
an
integral
part
of
their
business
operations".
The
same
can
be
said
about
the
criminal
law:
anyone
who
lives
in
society
must
accept
the
rules
laid
down
in
the
Criminal
Code,
R.S.C.,
1985,
c.
C-46.
There
is
nothing
surprising
in
this:
the
validity
of
legislation
does
not
depend
on
the
consent
of
those
to
whom
it
applies.
Accordingly,
although
the
statement
by
Cory
J.
is
correct,
it
cannot
be
used
as
the
basis
for
a
valid
distinction
between
various
types
of
offences,
depending
on
whether
or
not
the
individuals
concerned
"accept"
the
rules
in
question.
All
things
considered,
I
do
not
feel
that
the
"licensing"
theory
can
be
of
any
value
in
determining
the
scope
of
the
rights
guaranteed
by
the
Charter.
I
have
nevertheless
come
to
the
same
conclusion
as
Cory
J.
regarding
the
extent
of
the
respondents’
expectations
of
privacy.
Cory
J.
notes
the
following
factors.
1.
The
Act
respecting
the
Ministère
du
Revenu,
R.S.Q.,
c.
M-31,
does
not
create
criminal
offences
in
the
strict
sense.
Its
purpose
is
instead
to
set
up
an
administrative
mechanism
for
the
collection
of
taxes.
2.
The
Minister
may
seize
a
considerable
number
of
documents
whose
connection
with
enforcement
of
the
Act
may
be
tenuous.
3.
The
Act
allows
for
searches
at
the
premises
of
third
parties
who
are
not
the
subject
of
an
investigation
and
who
may
have
been
in
compliance
with
the
Act.
4.
Certain
searches
took
place
at
the
respondents’
private
homes,
not
their
commercial
establishments.
5.
Searches
involve
a
greater
intrusion
into
individual
privacy
than
a
mere
demand
for
production
of
documents.
From
factors
2,
3,
4
and
5
it
can
be
concluded
that
the
respondents
had
reasonable
expectations
of
privacy
with
respect
to
the
documents
seized
by
the
appellants.
The
first
factor
suggests
that
the
scope
of
these
expectations
should
be
treated
as
relative,
but
like
Cory
J.
I
am
of
the
view
that
they
are
sufficiently
important
to
justify
upholding
the
impounding
orders.
I
would
dismiss
the
appeal
with
costs.
La
Forest
J.:—This
case
raises
the
question
whether
interlocutory
relief
in
the
form
of
an
impounding
order
should
be
granted
until
the
validity
of
the
provisions
authorizing
searches
in
the
Act
respecting
the
Ministère
du
Revenu,
R.S.Q.,
c.
M-31,
has
been
determined
under
the
Canadian
Charter
of
Rights
and
Freedoms.
Facts
acts
The
facts
in
the
two
cases
giving
rise
to
these
appeals
are
similar
and
may
be
summarized
as
follows.
Judges
of
the
Court
of
Quebec
issued
written
authorizations
to
conduct
searches
pursuant
to
section
40
of
the
Act
respecting
the
Ministère
du
Revenu
(hereinafter
"the
Act"),
based
on
sworn
informations
that
the
respondents
had
inter
alia
attempted
to
avoid
the
payment
of
sums
of
money
pursuant
to
the
Meals
and
Hotels
Tax
Act,
R.S.Q.,
c.
T-3.
These
authorizations
were
executed
at
the
places
of
business
of
the
corporate
respondents
and
the
homes
of
the
respondents
Arcuri
and
Tabah.
Several
documents
were
seized.
In
both
cases
the
respondents
challenged
the
legality
of
the
search
warrants
by
means
of
motions
in
evocation,
certiorari
and
mandamus,
seeking
to
quash
the
seizure
authorizations
and
their
execution
and
to
attack
the
constitutionality
of
sections
40
and
40.1
of
the
Act
in
light
of
sections
7
and
8
of
the
Canadian
Charter
of
Rights
and
Freedoms
(hereinafter
“the
Charter")
and
section
24.1
of
the
Quebec
Charter
of
Human
Rights
and
Freedoms,
R.S.Q.,
c.
C-12.
By
way
of
interlocutory
relief
the
respondents
appended
to
their
actions
motions
to
have
all
the
seized
documents
impounded
so
they
could
be
sealed
and
given
into
the
custody
of
a
third
party
pending
a
final
judgment
on
the
legality
of
the
search
warrants.
In
the
14347]
Canada
Inc.
case,
on
November
7,
1990,
Hannan
J.
of
the
Quebec
Superior
Court
allowed
the
motion
to
impound
the
seized
documents,
until
such
time
as
judgment
was
rendered
at
trial
on
the
legality
of
the
search
warrants:
[1990]
R.D.F.Q.
104.
On
February
10,
1992
Croteau
J.
of
the
Quebec
Superior
Court
dismissed
the
motion
in
evocation,
certiorari
and
mandamus
and
concluded
that
section
40
of
the
Act
was
constitutional:
[1992]
R.D.F.Q.
48.
The
respondents
appealed
that
decision
and
asked
the
Court
of
Appeal
to
issue
an
order
impounding
the
seized
documents
for
the
duration
of
the
proceedings.
In
the
Tabah
case,
on
June
18,
1991,
Marquis
J.
of
the
Quebec
Superior
Court
allowed
the
motion
to
impound
the
seized
documents
until
a
final
judgment
was
rendered
on
the
legality
of
the
search
warrants:
[1991]
R.D.F.Q.
90.
The
appellants
appealed
that
judgment.
In
two
unanimous
judgments
rendered
on
March
9,
1992,
the
Quebec
Court
of
Appeal
allowed
the
motion
to
impound
the
seized
documents
in
the
143471
Canada
Inc.
case
(1992),
32
A.C.W.S.
(3d)
226
and
dismissed
the
appellants’
appeal
in
the
Tabah
case,
[1992]
R.D.F.Q.
44.
Judgments
of
the
courts
below
Quebec
Superior
Court,
143471
Canada
Inc.
case
Hannan
J.
characterized
the
motion
to
impound
as
an
exemption
case
since
it
applied
only
to
the
respondents,
was
confined
to
the
documents
seized,
and
related
to
the
offences
alleged.
In
ruling
on
the
validity
of
the
motion
he
considered
the
three
criteria
set
out
in
Manitoba
(Attorney
General)
v.
Metropolitan
Stores
Ltd.,
[1987]
1
S.C.R.
110,
namely,
whether
there
was
a
serious
question
to
be
tried,
the
irreparable
harm
the
respondents
might
suffer
if
the
motion
was
dismissed
and
tie
balance
of
convenience.
Hannan
J.
noted
that
the
first
criterion
was
difficult
to
apply
at
the
interlocutory
stage.
He
referred
to
the
opinion
expressed
by
Beetz
J.
in
Metropolitan
Stores
Ltd.
that
the
courts
are
reluctant
to
grant
an
interlocutory
injunction
unless
the
public
interest
is
weighed
in
the
balance
of
convenience.
Relying
on
Canada
v.
McKinlay
Transport
Ltd.,
[1990]
I
S.C.R.
627,
[1990]
2
C.T.C.
103,
90
D.T.C.
6243,
and
Thomson
Newspapers
Ltd.
v.
Canada
(Director
of
Investigation
and
Research,
Restrictive
Trade
Practices
Commission),
[1990]
1
S.C.R.
425,
Hannan
J.
noted
that
the
distinction
between
the
criminal
and
regulatory
contexts
with
regard
to
what
constitutes
a
reasonable
invasion
of
privacy
was
likely
to
increase
that
reluctance
to
order
interlocutory
relief.
He
concluded,
however,
that
it
was
difficult
to
assess
if
a
prima
facie
case
was
made
out
and
proposed
to
review
the
other
criteria.
In
determining
whether
irreparable
harm
existed,
Hannan
J.
relief
on
the
Quebec
Court
of
Appeal’s
decision
in
Zeppetelli
v.
Canada,
[1990]
2
C.T.C.
354,
90
D.T.C.
6461.
In
that
case
the
court
noted
that
impoundment
was
an
essential
preventive
measure
for
the
constitutional
protection
of
privacy
against
a
seizure
that
might
eventually
be
declared
unreasonable.
In
the
court’s
view
refusing
the
impoundment
would
cause
irreparable
harm
since
the
disclosure
would
be
an
invasion
of
privacy
and
would
render
the
protection
conferred
by
the
Charter
meaningless.
Hannan
J.
considered
he
was
bound
by
this
decision
and
concluded
as
follows
(at
page
109):
In
this
unanimous
judgment
in
Zeppetelli
it
is
possible
to
draw
the
inference
that
once
protection
of
privacy
is
sought
in
a
case
where
the
intrusion
is
allegedly
unconstitutional
(or
at
least
anti-constitutional),
the
Court
of
Appeal
considered
that
the
criterion
of
irreparable
harm
has
been
met
and,
apparently,
that
the
judgment
in
Dyment
would
support
such
a
conclusion.
[Translation.]
With
respect
to
the
balance
of
convenience
criterion,
Hannan
J.
pointed
out
that
the
exemption
sought
by
the
respondents
was
very
limited
in
its
application
and
did
not
have
the
effect
of
paralysing
any
other
investigation
or
prosecution
for
other
offences
relating
to
different
periods.
He
noted
the
comments
made
by
Baudouin
J.A.
in
Zeppetelli,
supra,
who
pointed
out
that
"as
between
inconveniences
of
an
essentially
administrative
nature
and
those
involving
a
constitutionally
protected
fundamental
right,
the
balance
must
tip
in
favour
of
the
latter"
[translation]
(page
357).
Hannan
J.
came
to
the
following
conclusion
(at
page
110):
In
the
present
case,
where
the
exceptional
stay
is
restricted
to
the
items
already
seized,
and
does
not
suspend
the
application
of
the
tax
legislation,
except
in
this
regard,
and
where
the
irreparable
harm
and
balance
of
convenience
are
in
favour
of
the
applicants
until
this
Court
renders
a
judgment
on
the
motion
in
evocation,
and
although
the
merits
of
the
case
are
not
crystal
clear,
there
is
a
good
basis
for
granting
the
present
motion
to
impound.
[Translation.]
Quebec
Superior
Court,
Tabah
case
Like
Hannan
J.,
Marquis
J.
of
the
Quebec
Superior
Court
relied
on
Metropolitan
Stores
and
Zeppetelli,
supra,
in
deciding
whether
to
grant
the
impounding
order.
He
characterized
the
case
as
one
of
exemption
since
the
effect
of
the
motion
to
impound
was
only
to
suspend
pendente
lite
the
application
of
the
impugned
provisions
of
the
Act
as
they
affected
the
respondents.
Marquis
J.
proceeded
to
apply
the
three
relevant
criteria
in
determining
whether
to
grant
the
respondents’
motion.
Marquis
J.
concluded
that
the
respondents
met
the
prima
facie
case
criterion
since
the
case
raised
a
serious
question.
In
his
view
the
contention
put
forward
by
the
appellants
was
not
so
immediately
obvious
as
to
exclude
from
consideration
that
put
forward
by
the
respondents.
In
support
of
this
conclusion
he
relied
on
the
reasons
of
Hugessen
J.A.
of
the
Federal
Court
of
Appeal
in
Baron
v.
Canada,
[1991]
1
C.T.C.
125,
91
D.T.C.
5055.
Regarding
the
irreparable
harm
criterion,
Marquis
J.,
after
referring
to
the
Court
of
Appeal’s
decision
in
Zeppetelli,
supra,
concluded
(at
page
96):
While
it
is
true
that
the
seizures
have
already
been
made,
the
evidence
shows
that
the
examination
of
the
documents
seized
is
far
from
being
complete.
The
very
purpose
of
that
examination
is
to
identify
evidence
which
might
eventually
lead
to
the
prosecution
of
one
or
more
of
the
[respondents].
It
is
also
this
examination
of
the
seized
documents
which
is
an
invasion
of
privacy:
if
the
seizures
were
eventually
quashed,
irreparable
injury
would
be
caused
to
the
[respondents]
which
could
have
been
prevented
by
the
impoundment.
[Translation.]
With
respect
to
the
balance
of
convenience
criterion,
Marquis
J.
also
relied
on
the
foregoing
passage
from
he
Court
of
Appeal’s
decision
in
Zeppetelli,
which
noted
that
"as
between
inconveniences
of
an
essentially
administrative
nature
and
those
involving
a
constitutionally
protected
fundamental
right,
the
balance
must
tip
in
favour
of
the
latter"
[translation]
(page
357).
On
the
question
of
the
public
interest,
he
noted
that
although
the
public
is
entitled
to
have
the
law
respected
and
to
have
offenders
prosecuted,
the
appellants’
fear-that
applications
to
impound
would
become
so
numerous
as
to
paralyze
the
operation
of
the
Act-was
not
based
on
any
factual
evidence.
Accordingly,
since
the
exemption
was
limited
to
specific
persons
and
documents
and
the
case
raised
a
serious
question,
Marquis
J.
ordered
that
the
documents
be
impounded
until
a
final
judgment
was
rendered
on
the
legality
of
the
searches.
Quebec
Court
of
Appeal
The
Quebec
Court
of
Appeal
allowed
the
motion
to
impound
in
the
143471
Canada
Inc.
case,
relying
on
the
principles
set
out
in
Zeppetelli
and
the
reasons
given
in
the
judgment
it
rendered
the
same
day
in
the
Tabah
case.
In
the
latter
the
Court
of
Appeal
dismissed
the
appellants’
appeal,
being
of
the
view
that
the
purpose
of
the
motion
to
impound
was
not
to
suspend
the
effect
of
the
Act
but
simply
to
delay
temporarily
access
to
the
seized
documents,
which
might
also
contain
information
of
a
personal
nature.
The
judgment
was
as
follows:
Whereas
in
the
present
case
the
purpose
of
the
respondents’
motion
was
not
to
suspend
the
effect
of
the
act,
since
according
to
its
terms
the
investigations
and
other
measures
undertaken
against
the
respondents
can
continue
and
have
in
fact
continued;
Whereas
the
purpose
of
the
motion
was
only
to
suspend,
on
a
purely
temporary
basis,
the
appellants’
access
to
documents,
books
and
registers
which
might
contain
personal
items
of
information
and
so
contravene
the
protection
of
privacy
guaranteed
by
law;
Whereas,
although
this
Court
is
not
ruling
on
the
reality
or
existence
of
the
other
criteria,
the
respondents
have
both
in
the
Superior
Court
and
in
this
Court
demonstrated
a
prima
facie
case
and
so
met
the
first
condition
set
out
above;
Whereas
further
the
Supreme
Court
of
Canada
recently
heard
two
cases
on
not
exactly
identical
but
similar
points
of
law
in
Baron
v.
Canada
and
Kourtessis
v.
M.N.R.
and
those
cases
are
currently
reserved;
In
view
of
Attorney
General
of
Manitoba
v.
Metropolitan
Stores
Ltd.',
Hunter
v.
Southam
Inc.',
Bâtiments
Fafard
Inc./Fafard
Building
System
Inc.
v.
R.
and
Zeppetelli
v.
R.
For
these
reasons:
Dismisses
the
appeal
with
costs.
[Translation.]
Analysis
In
Metropolitan
Stores,
supra,
this
Court
expressly
rejected
the
presumption
of
constitutional
validity
of
legislation,
understood
in
its
literal
sense,
as
it
considered
it
to
be
’’not
compatible
with
the
innovative
and
evolutive
character"
of
the
Charter
(at
page
124).
The
presumption
of
constitutional
validity
of
legislation
is
at
variance
with
the
flexible
and
generous
interpretation
that
should
be
given
to
the
Charter
in
view
of
the
nature
of
the
rights
and
freedoms
entrenched
in
it:
see
Reference
re
B.C.
Motor
Vehicle
Act,
[1985]
2
S.C.R.
486,
24
D.L.R.
(4th)
536.
Interlocutory
relief
was
refused
in
Metropolitan
Stores,
however,
and
the
disputed
provisions
continued
to
apply
while
their
constitutionality
was
being
determined.
That
decision
indicates
that
interlocutory
orders
suspending
the
application
of
legislation
will
not
be
granted
automatically.
A
cautious
approach
is
all
the
more
necessary
as
the
government’s
activities
have
ramifications
throughout
all
aspects
of
life
in
society.
There
is
much
other
legislation,
in
addition
to
taxation
statutes,
that
includes
inspection
or
investigation
systems
the
implementation
of
which
might
give
rise
to
applications
designed
to
impede
their
operation:
legislation
on
the
environment,
the
professions,
labour,
health
and
safety
and
securities
transactions
are
some
examples.
The
orchestration
of
a
large
number
of
activities
regulated
by
the
government
might
be
compromised
if
litigants
could
easily
avoid
the
application
of
legislation
adopted
by
democratically
elected
legislatures,
presumably
in
the
public
interest.
In
addition
there
is
the
problem
of
systemic
delays
in
court
challenges.
This
cannot
be
ignored
in
deciding
whether
to
grant
interlocutory
relief
suspending
the
application
of
legislation
for
the
duration
of
the
proceedings.
In
the
present
appeal
the
search
authorizations
were
issued
in
June
1990
in
the
143471
Canada
Inc.
case
and
in
March
1991
in
the
Tabah
case.
In
the
former
case
the
appeal
from
the
motion
in
evocation,
certiorari
and
mandamus
has
recently
been
heard
by
the
Quebec
Court
of
Appeal
and
judgment
is
presently
reserved.
In
the
latter
the
motion
has
not
even
been
dealt
with
at
first
instance.
A
final
ruling
on
the
validity
of
these
motions,
if
it
were
to
be
made
by
this
Court,
is
not
to
be
expected
for
some
time.
In
this
light,
it
is
necessary
to
adopt
an
analytical
framework
that
permits
the
reconciliation
of
the
rights
and
freedoms
entrenched
in
the
Charter
with
the
conduct
of
governmental
affairs.
Although
this
point
was
not
expressly
made
by
the
parties,
it
seems
to
me
entirely
appropriate
to
use
the
analytical
framework
developed
in
Metropolitan
Stores,
even
though
this
appeal
does
not
raise
the
question
of
a
stay
of
proceedings
or
an
injunction.
If
granted,
the
remedy
sought
will
exempt
the
respondents
for
all
practical
purposes
from
the
application
of
the
provisions
of
the
Act
regarding
inves-
ligations
until
the
legality
of
the
searches
has
been
determined.
The
three
criteria
set
out
in
Metropolitan
Stores—prima
facie
case,
irreparable
harm
and
balance
of
convenience-have
recently
been
revisited
by
this
Court
in
RJR-Macdonald
Inc.
v.
Canada
(Attorney
General),
[1994]
1
S.C.R.
311,
111
D.L.R.
(4th)
385.
My
colleagues
Sopinka
and
Cory
JJ.
there
made
an
analysis
of
the
principles
with
which
I
entirely
agree.
There
is
no
need
to
repeat
it
except
as
necessary
to
explain
its
application
to
the
present
case.
Prima
facie
case
The
requirement
of
a
prima
facie
case
is
explained
by
the
concern
with
preventing
a
litigant
from
avoiding
the
application
of
legislation
by
simply
arguing
that
it
is
unconstitutional.
There
must
be
a
mechanism
to
ensure
that
frivolous
or
vexatious
actions
will
not
systematically
result
in
interlocutory
relief
intended
to
impede
the
application
of
legislation.
In
cases
involving
a
constitutional
challenge,
particularly
when
it
is
based
on
the
Charter,
the
application
of
this
criterion
will
be
more
flexible
if
the
public
interest
is
considered
in
the
analysis
of
the
balance
of
convenience.
It
will
then
be
sufficient
to
note
that
there
is
a
serious
question
to
be
tried.
This
greater
flexibility
is
necessary
in
view
of
the
inherent
difficulties
of
determining,
at
the
interlocutory
stage,
the
validity
of
the
constitutional
challenge,
given
the
limited
evidence
and
the
effect
that
an
exemption
from
or
suspension
of
the
application
of
a
statute
can
have
not
only
on
the
parties
but
also
on
the
public
interest.
The
appellants
argue
that
the
provisions
authorizing
the
searches
are
in
accordance
with
the
principles
set
out
in
Hunter
v.
Southam
Inc.,
[1984]
2
S.C.R.
145,
84
D.T.C.
6467.
They
criticize
the
Court
of
Appeal
for
relying
on
the
fact
that
Baron
v.
Canada,
[1993]
1
S.C.R.
416,
[1993]
1
C.T.C.
111,
93
D.T.C.
5018,
and
Kourtessis
v.
M.N.R.,
[1993]
2
S.C.R.
53,
[1993]
1
C.T.C.
301,
were
still
reserved
at
the
time
it
rendered
its
decision
concluding
that
there
was
a
prima
facie
case.
In
this
Court
they
argued
that
there
is
no
longer
a
prima
facie
case
in
view
of
the
Court’s
conclusions
in
Baron.
In
the
143471
Canada
Inc.
case,
although
the
issue
is
limited
to
the
constitutionality
of
sections
40
and
40.1
of
the
Act,
the
respondents
put
forward
other
arguments
that
section
40
of
the
Act
is
unconstitutional,
in
addition
to
those
dealt
with
by
this
Court
in
Baron.
They
concede
that
the
latter
are
now
academic.
The
respondents
rely
inter
alia
on
the
fact
that
there
is
no
requirement
to
allege
the
commission
of
an
offence,
or
the
identification
of
the
premises
or
the
things
to
be
seized;
on
the
argument
that
section
40
of
the
Act
is
unconstitutional
since
it
is
the
Minister
who
technically
issues
the
search
warrant;
on
the
fact
that
there
is
no
express
requirement
that
the
judge’s
authorization
be
given
before
the
warrant
is
issued
or
even
before
the
seizure
is
carried
out;
and
on
the
combined
effect
of
sections
40
and
40.1
of
the
Act
and
the
legality
of
"fishing
expeditions".
The
respondents
also
plead
the
unconstitutionality
of
section
40.1
of
the
Act,
which
refers
to
the
"plain
view"
doctrine,
in
support
of
the
motion
in
evocation,
certiorari
and
mandamus
in
the
Tabah
case.
This
practice
has
been
approved
on
several
occasions
by
Canadian
courts.
However,
this
Court
has
never
ruled
on
its
constitutionality
under
section
8
of
the
Charter.
Finally,
in
addition
to
the
argument
that
the
provision
authorizing
the
seizures
is
unconstitutional,
the
respondents
argue
that
the
information
was
inadequate
and
the
seizures
were
unreasonable.
Since
this
Court
has
taken
a
liberal
approach
to
the
application
of
the
first
criterion,
I
am
prepared
to
conclude
that
there
is
in
both
cases
a
prima
facie
case.
I
hasten
to
add
that
the
Quebec
Court
of
Appeal
could
not
have
come
to
any
other
conclusion
at
the
time
it
dealt
with
the
matter
since
its
decision
was
rendered
when
Baron
and
Kourtessis,
supra,
were
under
reserve.
One
can
certainly
question
whether
the
fact
that
the
Quebec
Superior
Court
dismissed
the
motion
in
evocation,
certiorari
and
mandamus
in
the
143471
Canada
Inc.
case
imposes
a
heavier
burden
in
meeting
the
first
criterion.
This
argument
was
made
by
the
appellants,
who
objected
that
the
Court
of
Appeal
had
not
applied
its
own
case
law
on
stays
of
proceedings,
by
virtue
of
which
a
stay
will
very
seldom
be
ordered
when
there
is
no
apparent
defect
in
the
lower
court
judgment.
The
dismissal
of
the
motion
in
evocation,
certiorari
and
mandamus
by
the
Superior
Court
is
certainly
a
relevant
factor,
but
is
not,
in
this
case,
sufficient
to
alter
the
fact
that
serious
questions
have
been
raised
by
the
respondents.
I
do
not
think
that
the
precedents
regarding
stay
of
proceedings
should
be
applied
without
qualification
when
the
constitutionality
of
legislation
is
challenged
under
the
Charter,
in
view
of
the
importance
and
complexity
of
the
rights
and
freedoms
it
entrenches.
Having
thus
not
been
persuaded
that
the
respondents’
motions
in
evocation,
certiorari
and
mandamus
are
frivolous
or
vexatious,
I
propose
to
analyze
the
other
two
steps
of
the
test
set
forth
in
Metropolitan
Stores.
Irreparable
harm
The
irreparable
harm
criterion
refers
to
the
harm
the
applicant
may
suffer
if
the
interlocutory
relief
is
not
granted.
If
there
is
no
harm
or
it
can
be
adequately
compensated
for
by
an
award
of
damages,
there
will
be
little
reason
to
exempt
the
applicant
from
the
application
of
the
law.
In
RJR-MacDonald,
supra,
this
Court
noted
that
this
view
of
harm
is
of
limited
application
when
a
breach
of
the
Charter
is
alleged.
The
concept
of
"irreparable
harm"
is
often
associated
with
that
of
damages.
However,
a
monetary
remedy
is
not
always
contemplated
in
cases
where
the
Charter
is
invoked.
This
results
from
the
nature
of
the
rights
it
guarantees
and
of
the
parties.
That
is
why
the
Court
held
that
in
most
situations
the
existence
of
irreparable
harm
must
be
presumed.
But
when
the
alleged
harm
itself
takes
the
form
of
a
breach
of
a
right
protected
by
the
Charter,
as
it
does
here,
the
judge
who
has
the
responsibility
for
ruling
on
the
merits
of
the
interlocutory
motion
is
in
the
best
position
to
determine
its
nature
and
extent
and
whether
it
is
irreparable.
Harm
is
generally
viewed
from
the
standpoint
of
the
person
seeking
to
benefit
from
the
interlocutory
relief.
Others
view
it
from
the
standpoint
of
the
person
against
whom
the
motion
is
directed.
Although
one
could
at
this
stage
consider
the
type
of
harm
the
Ministère
du
revenu
might
incur
if
an
impounding
order
were
upheld,
in
my
view
it
is
preferable
to
consider
this
issue
when
the
balance
of
convenience
is
being
determined.
The
same
is
true
of
irreparable
harm
to
the
public
interest.
This
was
the
approach
taken
by
this
Court
of
RJR-Macdonald,
and,
as
I
see
it,
it
is
the
right
one.
The
respondents
contend
that
if
no
impounding
order
is
made
they
will
suffer
harm
since
the
examination
of
the
contents
of
the
seized
documents
by
the
tax
authorities
will
result
in
an
infringement
of
their
right
to
privacy.
Such
harm,
they
say,
would
be
its
very
nature
be
irreparable.
The
respondents
argue
that
if
individuals
have
the
right
to
be
protected
against
state
intrusions
and
to
have
the
legality
of
such
intrusions
tested,
it
follows
that
the
courts
have
the
power-and
the
duty-to
protect
the
privacy
of
the
documents
seized
and
preserve
the
status
quo
by
ordering
that
the
documents
be
impounded
until
the
legality
of
the
searches
has
been
determined.
The
appellants,
on
the
other
hand,
argue
that
the
respondents
would
suffer
no
harm
because
any
reasonable
expectations
of
privacy
they
might
have
are
limited
or
perhaps
even
non-existent.
The
conclusion
that
the
respondents
will
suffer
irreparable
harm
seems
at
first
sight
irrefutable,
since
they
are
relying
on
a
breach
of
a
constitutionally
protected
right,
the
infringement
of
which
its
itself
an
extension
of
that
resulting
from
the
search.
This
was
the
view
taken
by
the
Quebec
Court
of
Appeal
in
Zeppetelli,
supra,
relied
on
by
Hannan
and
Marquis
JJ.
in
the
case
at
bar,
in
concluding
that
there
was
irreparable
harm.
In
that
case
Baudouin
J.A.
relied
on
the
following
passage
from
this
Court’s
decision
in
À.
v.
Dyment,
[1988]
2
S.C.R.
417,
55
D.L.R.
(4th)
503,
at
page
430
(D.L.R.
515),
in
support
of
the
conclusion
that
if
there
was
no
impounding
the
respondents
would
suffer
irreparable
harm:
One
further
general
point
must
be
made,
and
that
is
that
if
the
privacy
of
the
individual
is
to
be
protected,
we
cannot
afford
to
wait
to
vindicate
it
only
after
it
has
been
violated.
This
is
inherent
in
the
notion
of
being
secure
against
unreasonable
searches
and
seizures.
Invasions
of
privacy
must
be
prevented,
and
where
privacy
is
outweighed
by
other
societal
claims,k
there
must
be
clear
rules
setting
forth
the
conditions
in
which
it
can
be
violated.
This
is
especially
true
of
law
enforcement,
which
involves
the
freedom
of
the
subject.
[Emphasis
in
original
]
In
Zeppetelli
Baudouin
J.A.
concluded
as
follows
(at
page
356):
In
this
case,
therefore,
impounding
is
a
preventive
measure
inherent
in
the
constitutional
protection
of
privacy
from
a
seizure
which
might
eventually
be
found
to
be
unreasonable.
According
to
the
rule
stated
by
the
Supreme
Court,
the
injury
caused
would
thus
be
irreparable,
as
disclosure
would
be
an
invasion
of
privacy
and
make
the
protection
afforded
by
the
Charter
meaningless.
[Translation.]
However,
the
present
case
can
be
distinguished
from
Dyment,
where
the
respondent
was
challenging
the
seizure
of
a
bodily
fluid
without
prior
authorization.
The
respondents
are
objecting
here
to
the
examination
by
the
tax
authorities
of
the
contents
of
business
documents
the
seizure
of
which
was
previously
authorized.
The
existence
of
irreparable
harm
cannot
be
inferred
simply
because
a
breach
of
a
right
protected
by
the
Charter
is
alleged
or
because
the
main
proceeding
itself
involves
the
infringement
of
an
entrenched
right.
In
the
present
case
not
only
have
the
courts
not
yet
made
a
final
ruling
on
whether
the
searches
are
unreasonable,
but
the
Quebec
Superior
Court
dismissed
the
motion
in
evocation,
certiorari
and
mandamus
in
143471
Canada
Inc.
case.
It
seems
wrong
to
conclude
as
a
matter
of
principle
that
the
right
to
privacy
must
in
all
circumstances
take
priority
over
any
other
interest,
for
example
over
giving
effect
to
legislation
adopted
in
the
public
interest.
Both
the
right
and
the
alleged
infringement
must
be
placed
in
context:
see
United
States
of
America
v.
Cotroni,
[1989]
1
S.C.R.
1469,
and
Edmonton
Journal
v.
Alberta
(Attorney
General),
[1989]
2
S.C.R.
1326.
Accordingly,
before
concluding
that
the
harm
is
"irreparable",
as
required
by
the
second
criterion,
the
existence
and
extent
of
the
harm
must
be
determined,
something
which
the
Court
of
Appeal
seems
to
have
failed
to
do
in
the
case
at
bar
since
it
simply
said
that
the
seized
documents
might
"contain
personal
items
of
information
and
so
contravene
the
protection
of
privacy
guaranteed
by
law",
[translation]
[1992]
R.D.F.Q.
44,
at
page
45.
There
is
considerable
merit
in
the
proposition
that
persons
who
decide
to
engage
in
activities
regulated
by
the
government
are
subject
to
a
diminution
of
their
expectations
of
privacy.
In
that
case,
it
can
be
presumed
that
they
have
agreed
to
be
subject
to
the
obligations
imposed
by
the
legislature
that
are
inherent
in
the
conduct
of
such
activities;
see
R.
v.
Wholesale
Travel
Group
Inc.,
supra.
While
in
McKinlay
Transport,
supra,
this
Court
was
of
the
view
that
power
given
by
subsection
231(3)
of
the
Income
Tax
Act,
came
within
the
ambit
of
section
8
of
the
Charter,
it
held
that
the
criteria
laid
down
in
Hunter
v.
Southam
Inc.
could
be
applied
more
flexibly
in
a
regulatory
context.
After
analyzing
several
lower
court
decisions,
Wilson
J.
wrote,
at
page
647
(C.T.C.
113,
D.T.C.
6250):
I
refer
to
these
cases
not
to
approve
or
disapprove
the
results
achieved
but
rather
as
evidence
of
the
need
to
take
a
flexible
and
purposive
approach
to
section
8
of
the
Charter.
It
is
consistent
with
this
approach,
I
believe,
to
draw
a
distinction
between
seizures
in
the
criminal
or
quasi-criminal
context
to
which
the
full
rigours
of
the
Hunter
criteria
will
apply,
and
seizures
in
the
administrative
or
regulatory
context
to
which
a
lesser
standard
may
apply
depending
upon
the
legislative
scheme
under
review.
McKinlay
Transport
dealt
with
the
constitutionality
of
a
provision
authorizing
the
tax
authorities
to
require
the
production
of
documents.
Such
a
power,
though
it
was
characterized
as
a
"seizure"
within
the
meaning
of
section
8
of
the
Charter,
was
nonetheless
different
from
the
power
to
"search".
This
distinction
was
the
basis
for
the
qualification
to
the
application
of
the
criteria
set
out
in
Hunter
v.
Southam
Inc.
In
Thomson
Newspapers,
I
underlined
that
the
more
invasive
character
of
a
search
was
referable
to
the
importance
individuals
attached
to
the
inviolability
of
their
homes,
and
of
their
workplaces.
I
added,
at
page
522
of
the
judgment:
The
requirement
to
submit
to
a
search
of
business
premises
by
agents
of
the
state
can
therefore
amount
to
a
requirement
to
reveal
aspects
of
one’s
personal
life
to
the
chilling
glare
of
official
inspection.
It
seriously
invades
the
right
to
be
secure
against
unreasonable
search
and
seizure.
This
is
not
the
case
with
a
power
to
order
the
production
of
records
and
documents
relevant
to
the
investigation
of
anti-competitive
offences;
there
the
eyes
of
the
state
can
see
no
further
then
the
business
records
it
is
entitled
to
demand.
[Emphasis
in
original.
I
The
reasons
of
L’
Heureux-Dubé
J.
were
essentially
to
the
same
effect
(at
page
594):
Although
they
are
functional
equivalents,
a
requirement
to
produce
documents
impairs
considerably
less
on
a
corporation’s
or
an
individual’s
privacy
than
the
actual
entry
into,
and
search
of,
its
place
of
business
or
home.
This
is
especially
so,
in
the
case
of
corporations,
since,
for
the
reasons
given
above,
a
corporation’s
privacy
interest
with
respect
to
a
request
for
documents
is
relatively
low.
Wilson
J.
also
made
the
point
in
McKinlay
Transport,
at
page
649
(C.T.C.
114,
D.T.C.
6251):
Thus,
when
the
tax
officials
seek
entry
onto
the
private
property
of
an
individual
to
conduct
a
search
or
seizure,
the
intrusion
is
much
greater
than
a
mere
demand
for
production
of
documents.
The
reason
for
this
is
that,
while
a
taxpayer
may
have
little
expectation
of
privacy
in
relation
to
his
business
records
relevant
to
the
determination
of
his
tax
liability,
he
has
a
significant
privacy
interest
in
the
inviolability
of
his
home.
In
the
case
at
bar
the
warrants
have
already
been
executed.
The
question
whether
the
searches
were
unreasonable
is
currently
before
the
Quebec
courts.
In
the
context
of
the
present
appeal
the
harm
claimed
by
the
respondents
relates
solely
to
the
fact
that
the
tax
authorities
will
learn
the
context
of
the
documents
seized.
Any
reasonable
expectations
of
privacy
the
respondents
may
have
regarding
the
context
of
those
documents
are
considerably
reduced
owing
to
their
relevance
in
establishing
the
tax
profile
of
their
business
and
the
responsibilities
they
assume
as
agents
of
the
government
in
collecting
the
meals
and
hotels
tax.
In
this
regard,
the
keeping
of
several
documents
seized
by
the
appellants
is
required
by
the
Act.
Section
34
provides:
34(1)
Every
person
who
carries
on
a
business
or
is
bound
under
a
fiscal
law
to
deduct,
withhold
or
collect
an
amount
must
keep
registers
and
books
of
account,
including
an
annual
inventory
in
the
prescribed
manner,
at
his
place
of
business
or
residence
or
at
any
other
place
designated
by
the
Minister.
The
registers
and
books
shall
be
kept
in
the
appropriate
form
and
contain
information
enabling
the
establishment
of
the
amount
that
must
be
deducted,
withheld,
collected
or
paid
under
a
fiscal
law.
The
Act
gives
the
Minister
of
Revenue
certain
powers
to
audit
books
and
registers.
Paragraph
38(a)
of
the
Act
provides:
38.
Any
person
authorized
to
do
so
by
the
Minister
may,
for
every
purpose
dealing
with
the
application
or
enforcement
of
a
fiscal
law,
enter
at
any
suitable
time
the
premises
or
places
in
which
a
business
is
carried
on
or
property
is
kept
or
in
which
anything
is
done
relating
to
any
business
or
where
books
or
registers
in
accordance
with
a
fiscal
law
are
or
must
be
kept.
The
person
so
authorized
by
the
Minister
may:
(a)
audit
or
examine
the
books
and
registers
and
any
account,
voucher,
letter,
telegram
or
other
document
which
may
relate
to
the
information
contained
or
that
should
be
contained
in
the
books
or
registers
or
to
the
amount
of
any
duty
that
must
be
paid,
deducted,
withheld
or
collected
under
a
fiscal
law;
Section
39
of
the
Act
gives
the
Minister
of
Revenue
power
to
require
the
production
of
information
and
documents:
39.
The
Minister
may,
by
a
formal
demand
delivered
by
registered
or
certified
mail
or
personal
service
require
from
any
person
that
he
file
by
registered
or
certified
mail
or
personal
service,
within
a
reasonable
delay
fixed
in
the
demand:
(a)
information
or
additional
information,
including
a
return,
report
or
supplementary
return
or
report
exigible
under
a
fiscal
law,
or
(b)
books,
letters,
accounts,
invoices,
financial
statements
or
other
documents.
The
constitutionality
of
a
similar
provision
has
already
been
determined
by
this
Court
in
McKinlay
Transport,
supra,
as
it
relates
to
the
expectation
of
privacy
of
a
taxpayer.
In
any
event,
it
does
not
arise
in
the
present
case.
The
way
in
which
the
tax
authorities
obtained
copies
of
the
documents
does
not
alter
the
nature
of
the
information
they
contain.
In
either
case
the
same
documents
are
in
question.
The
search
warrants
in
the
case
at
bar
and
the
seizures
resulting
from
their
issuance
were
directed
only
at
the
respondents’
business
documents,
production
of
which
may
be
required
under
the
Act.
The
Act
further
provides
that
a
person
may
object
to
the
production
or
seizure
of
documents
containing
information
protected
by
professional
privilege:
see
sections
46
and
53
of
the
Act
respectively.
Some
of
the
respondents
raised
this
objection
in
the
present
case,
and
documents
seized
in
the
accountants’
offices
were
sealed
and
entrusted
to
the
prothonotary
of
the
Superior
Court
pursuant
to
section
46
of
the
Act.
Finally,
disclosure
of
the
information
contained
in
the
seized
documents
is
itself
prohibited
by
the
Act:
the
tax
authorities
may
not
disclose
infor-
mation
obtained
in
the
course
of
their
investigation.
The
first
paragraph
of
section
69
of
the
Act
provides:
69.
All
information
obtained
in
the
application
of
a
fiscal
law
is
confidential.
No
public
servant
shall
use
such
information
for
any
purpose
not
provided
for
by
law,
communicate
such
information
or
allow
it
to
be
communicated
to
a
person
not
legally
entitled
thereto
or
allow
such
a
person
to
examine
a
document
containing
such
information
or
have
access
to
it.
These
provisions
minimize
the
risk
that
the
respondents
may
suffer
harm
as
a
result
of
the
implementation
by
the
tax
authorities
of
the
investigative
scheme
provided
by
the
Act.
Their
significance
cannot
be
disregarded.
They
echo
the
concerns
I
expressed
in
Dyment,
supra,
at
pages
429-30
(D.L.R.):
Finally,
there
is
privacy
in
relation
to
information.
This
too
is
based
on
the
notion
of
the
dignity
and
integrity
of
the
individual....
In
modern
society,
especially,
retention
of
information
about
oneself
is
extremely
important.
We
may,
for
one
reason
or
another,
wish
or
be
compelled
to
revel
such
information,
but
situations
abound
where
the
reasonable
expectations
of
the
individual
that
the
information
shall
remain
confidential
to
the
persons
to
whom,
and
restricted
to
the
purposes
for
which
it
is
divulged,
must
be
protected.
Similarly,
in
McKinlay
Transport,
supra,
Wilson
J.
noted
at
page
650
(C.T.C.
114,
D.T.C.
6251):
A
taxpayer’s
privacy
interest
with
regard
to
these
documents
vis-à-vis
the
Minister
is
relatively
low.
The
Minister
has
no
way
of
knowing
whether
certain
records
are
relevant
until
he
has
had
an
opportunity
to
examine
them.
At
the
same
time,
the
taxpayer’s
privacy
interest
is
protected
as
much
as
possible
since
section
241
of
the
Act
protects
the
taxpayer
from
disclosure
of
his
records
or
the
information
contained
therein
to
other
persons
or
agencies.
Some
may
be
concerned
that
the
seized
documents
may
contain
information
of
a
personal
nature.
However,
that
possibility
is
not,
in
my
view,
sufficient
to
alter
the
reasonable
expectations
of
privacy
of
taxpayers
in
respect
of
such
documents.
On
the
one
hand,
the
Act
itself
does
not
permit
the
seizure
of
documents
containing
personal
information.
Sections
38
and
40
of
the
Act,
as
well
as
section
39
which
authorizes
a
demand
for
the
production
of
documents,
are
directed
only
at
documents
the
contents
of
which
have
some
connection
with
the
application
of
tax
legislation
to
taxpayers.
In
the
highly
unlikely
event
that
documents
containing
information
of
a
personal
nature
were
seized
in
the
course
of
exercising
investigative
powers,
a
taxpayer
could
always
apply
to
the
courts,
seeking
their
exclusion
and
any
other
appropriate
relief
on
the
ground,
for
example,
that
this
went
beyond
the
investigators’
statutory
authority.
On
the
other
hand,
the
respondents
themselves
have
never
claimed
that
documents
of
that
kind
were
in
fact
seized
in
the
case
al
bar.
Indeed,
the
appellants
submitted
uncontradicted
evidence
that
all
the
documents
seized,
including
those
seized
in
the
private
homes
of
some
of
the
respondents,
were
covered
by
the
search
warrants
and
related
to
their
business
affairs,
in
particular
to
the
application
of
the
Act
to
them.
This
can
be
seen
by
examining
the
written
authorizations
and
the
inventory
of
the
documents
seized.
In
the
14347]
Canada
Inc.
case,
for
example,
the
written
authorization
of
the
Deputy
Minister
of
Revenue
limited
the
search
as
follows:
to
search
for
documents,
books,
registers,
papers
or
things
described
in
the
said
written
authorization
from
the
judge
of
the
Court
of
Quebec,
namely
documents,
books,
registers,
papers
or
things
concerning
the
operation
by
143471
Canada
Inc.
of
its
establishment...and
the
collection
by
it
of
the
tax
provided
for
in
the
Meals
and
Hotels
Tax
Act
(R.S.Q.,
c.
T-3)
during
the
period
from
June
26,
1985
to
June
30,
1988,
in
particular:
(a)
general
ledger,
sales
journal,
purchases
journal,
cash
receipts
journal,
cash
disbursements
journal,
subsidiary
journals,
wages
journal,
general
journal;
(b)
extra-accounting
registers
and
work
sheets,
sales
invoices,
purchase
invoices,
financial
statements,
bank
statements,
cheques
returned
paid,
deposit
slips
and
other
supporting
documents,
including
contracts
concluded
with
its
customers
and
all
documents
appended
thereto;
(c)
lists,
notebooks
or
other
documents
containing
information
relating
or
that
may
be
related
to
the
sales
of
143471
Canada
Inc.
or
to
the
collection
by
it
of
the
meals
and
hotels
tax;
which
may
serve
as
evidence
of
the
offence
mentioned
in
the
said
written
authorization
by
the
judge
of
the
Court
of
Quebec....
[Translation.]
The
documents
seized
in
the
search
made
in
the
143471
Canada
Inc.
case
correspond
to
those
identified
in
the
search
warrant:
bank
statements,
journal
entries,
purchase
invoices,
cheque
stubs,
cheques
debited,
financial
statements,
wages
book,
receipt
contracts
and
so
on.
the
same
is
true
of
the
documents
seized
in
the
Tabah
case,
though
the
written
authorizations
and
corresponding
seizures
are
more
detailed
since
the
information
indicated
several
breaches
of
the
Act.
In
any
event
both
the
authorizations
to
search
and
the
documents
seized
related
only
to
the
respondents’
business
affairs,
in
particular
those
required
to
conform
with
the
Act,
and
did
not
concern
any
document
likely
to
contain
personal
information.
Further,
unless
a
party
complains
of
the
seizure
of
information
of
a
personal
nature
I
do
not
think
it
is
desirable
for
the
judge
who
has
the
responsibility
to
rule
on
the
motion
to
impound
to
examine
the
contents
of
the
documents
seized
in
order
to
determine
whether
the
order
is
appropriate.
That
would
make
his
task
more
onerous
in
view
of
the
difficulties
inherent
in
determining
whether
the
information
contained
in
the
documents
seized
is
personal.
Accordingly,
I
find
it
difficult
to
see
how
the
respondents
will
suffer
irreparable
harm
if
the
tax
authorities
examine
the
contents
of
the
documents
seized.
Since
the
respondents
have
not
established
any
other
harm,
I
now
propose
to
consider
the
final
stage
of
the
Metropolitan
Stores
test.
The
balance
of
convenience
The
balance
of
convenience,
which
constitutes
the
third
criterion
relevant
in
determining
whether
interlocutory
relief
should
be
granted,
is
designed
to
weigh
the
respective
hardships
the
parties
may
incur
depending
on
whether
or
not
the
interlocutory
relief
is
granted.
As
the
existence
of
irreparable
harm
has
been
ruled
out,
it
is
hard
to
see
how
the
respondents
could
suffer
significant
hardship
if
they
were
denied
the
impoundment.
As
they
themselves
argue,
the
only
effect
of
the
impounding
order
is
to
delay
the
examination
of
the
documents.
It
can
thus
be
assumed
that
at
some
point
or
other
the
respondents
will
suffer
the
hardships
associated
with
an
investigation
by
the
Ministère
du
revenu,
whether
or
not
the
sections
are
declared
unconstitutional.
It
should
be
added
that
under
section
40.2
of
the
Act
the
respondents
may
obtain
copies
of
the
documents
seized.
The
hardships
the
appellants
are
likely
to
suffer
if
the
impoundment
is
upheld
derive
from
the
delays
imposed
on
the
examination
of
the
contents
of
the
seized
documents.
We
may
immediately
dispose
of
their
effect
on
the
limitations
against
penal
remedies
under
the
Act.
Although
the
impoundment
for
all
practical
purposes
suspends
the
investigative
proceedings,
the
actions
against
the
respondents
are
not
jeopardized--at
least
in
theory
-since
the
Act
provides
that
the
five-year
limitations
period
may
be
extended
to
one
year
from
the
date
the
Minister
of
Revenue
learns
of
evidence
sufficient
to
justify
prosecution;
see
section
78
of
the
Act.
In
the
circumstances
it
is
hardly
surprising
that
the
appellants
placed
no
great
emphasis
on
the
existence
of
such
harm
at
the
hearing;
sufficient
proof
probably
could
not
come
to
the
knowledge
of
the
Minister
of
Revenue
until
he
had
the
documents
covered
by
the
order
in
his
possession,
after
the
impounding
order
was
lifted.
The
appellants
added
that
if
the
impounding
orders
are
upheld
the
resulting
delays
would
jeopardize
proof
of
the
offences.
In
this
connection
they
note
the
difficulties
associated
with
gathering
information,
the
credibility
of
witnesses,
even
with
the
recovery
of
fees,
interest
and
fines,
in
view
of
the
risks
that
the
corporate
vehicle
might
be
altered
or
cease
to
exist.
The
respondent
143471
Canada
Inc.
made
an
assignment
of
its
property
on
September
I,
1992.
While
at
the
present
stage
of
the
proceedings
this
is
speculative,
the
Court
can
nevertheless
take
note
of
the
probable
occurrence
of
such
hardships.
In
Zeppetelli
Baudouin
J.A.
acknowledged
that
impoundment
would
prevent
the
Minister
of
Revenue
"from
having
access
for
the
moment
to
a
great
deal
of
information
which
might
allow
him
to
build
his
case
and
achieve
substantive
progress
on
the
matter"
[translation]
(page
357).
The
respondents
argued
that
in
any
case
impoundment
does
not
have
the
effect
of
suspending
the
Minister
of
Revenue’s
investigative
powers:
he
can
complete
his
evidence
by
other
means.
However,
this
option,
which
appreciably
moderates
the
effect
of
the
measure,
disregards
the
fact
that
the
Minister
of
Revenue
must
adduce
proof
beyond
a
reasonable
doubt.
Not
only
is
this
a
weighty
burden,
but
the
proof
of
offences
is
complicated
here
by
the
very
nature
of
tax
evasion,
which
requires
a
comprehensive
analysis
of
the
accounting
system
of
the
respondent
companies.
In
the
circumstances
there
is
nothing
to
suggest
that
the
Minister
of
Revenue
could
make
significant
progress
with
his
investigation
if
the
impoundment
were
upheld.
Further,
if
the
measure
had
the
negligible
effect
suggested
by
the
respondents,
then
the
applicability
of
the
test
set
forth
in
Metropolitan
Stores
would
be
open
to
question.
Even
if
we
admit
that
these
hardships
are
negligible
and
of
a
purely
administrative
nature,
the
fact
remains
that
the
present
case
has
ramifications
that
go
beyond
the
immediate
interests
of
the
parties,
if
only
because
of
the
mandate
underlying
the
action
of
the
Ministère
du
Revenu.
In
such
a
situation
Metropolitan
Stores
invites
the
courts
to
take
the
public
interest
into
account
in
determining
the
balance
of
convenience.
In
the
case
at
bar
the
Court
of
Appeal
is
not
only
silent
on
the
point
but
specifically
refused
to
rule
on
"the
reality
or
existence"
[translation]
of
this
criterion,
which
is
strange
to
say
the
least
since
in
the
143471
Canada
Inc.
case
it
was
not
sitting
in
appeal
from
the
judgment
of
Hannan
J.
In
Zeppetelli
Baudouin
J.A.
simply
stated
that
"as
between
inconveniences
of
an
essentially
administrative
nature
and
those
involving
a
constitutionally
protected
fundamental
right,
the
balance
must
tip
in
favour
of
the
latter"
[translation]
(page
357).
In
this
regard
the
appellants
rely
essentially
on
the
public
interest
in
having
the
Act
observed
and
enforced.
The
importance
of
tax
legislation
clearly
needs
no
elaboration;
see
Air
Canada
v.
B.C.,
[1989]
1
S.C.R.
1161,
59
D.L.R.
(4th)
161,
and
McKinlay
Transport,
supra.
Because
such
legislation
is
based
on
the
principle
of
self-declaration
and
self-assessment,
the
existence
of
mechanisms
making
it
possible
to
verify
whether
taxpayers
are
subject
to
the
Act
is
essential.
The
imposition
of
such
controls
is
all
the
more
necessary
for
individuals
who
act
as
agents
of
the
government.
In
Quebec
the
Act
imposes
on
the
Ministère
du
revenu
the
duty
of
supervising
the
implementation
and
execution
of
tax
legislation
and
confers
on
it
all
the
powers
necessary
for
this
purpose.
The
implementation
of
the
investigative
provisions
contained
in
sections
40
and
40.1
of
the
Act
is
essential
if
the
integrity
of
the
tax
collection
system
is
to
be
maintained.
These
considerations
alone
are
sufficient
to
meet
the
public
interest
criterion.
In
RJR-MacDonald
the
Court
wrote
(at
page
346
(D.L.R.
409)):
In
our
view,
the
concept
of
inconvenience
should
be
widely
construed
in
Charter
cases.
In
the
case
of
a
public
authority,
the
onus
of
demonstrating
irreparable
harm
to
the
public
interest
is
less
than
that
of
a
private
applicant.
This
is
partly
a
function
of
the
nature
of
the
public
authority
and
partly
a
function
of
the
action
sought
to
be
enjoined.
The
test
will
nearly
always
be
satisfied
simply
upon
proof
that
the
authority
is
charged
with
the
duty
of
promoting
or
protecting
the
public
interest
and
upon
some
indication
that
the
impugned
legislation,
regulation,
or
activity
was
undertaken
pursuant
to
that
responsibility.
Once
these
minimal
requirements
have
been
met,
the
court
should
in
most
cases
assumé
that
irreparable
harm
to
the
public
interest
would
result
from
the
restraint
of
that
action.
The
respondents
added,
however,
that
the
delay
in
examining
the
contents
of
the
documents
seized
causes
no
injury
to
the
public
interest
since
the
interlocutory
relief
is
limited
to
the
present
case.
The
argument
in
this
Court
centred
on
proof
of
a
"flood
of
actions"
since
the
judgments
of
the
Quebec
Court
of
Appeal
in
Zeppetelli,
supra.
Such
proof
was
viewed
as
important
by
both
sides
in
demonstrating
the
real
effect
of
the
impounding
order
on
the
public
interest.
In
my
view
proof
of
a
flood
of
actions—or
the
lack
of
it-1s
not
determinative
of
whether
or
not
interlocutory
relief
should
be
granted.
Depending
on
the
nature
and
scope
of
the
measure
contemplated,
as
well
as
the
particular
circumstances
of
each
case,
the
court
might
take
note
of
the
impact
of
a
decision
exempting
a
party
from
the
application
of
a
statute
on
future
litigants,
who
would
be
tempted
to
rely
on
it.
In
Metropolitan
Stores,
supra,
Beetz
J.
wrote
(at
page
146
(D.L.R.
347)):
The
reason
why
exemption
cases
are
assimilated
to
suspension
cases
is
the
precedential
value
and
exemplary
effect
of
exemption
cases.
Depending
on
the
nature
of
the
cases,
to
grant
an
exemption
in
the
form
of
a
stay
to
one
litigant
is
often
to
make
it
difficult
to
refuse
the
same
remedy
to
other
litigants
who
find
themselves
in
essentially
the
same
situation,
and
to
risk
provoking
a
cascade
of
stays
and
exemptions,
the
sum
of
which
make
them
tantamount
to
a
suspension
case.
It
is
not
desirable
to
impose
on
the
party
arguing
that
an
interlocutory
application
should
be
dismissed
a
requirement
that
he
prove
the
harmful
effect
of
previous
orders.
How
could
the
threshold
of
such
evidence
be
determined?
Such
a
burden
would
not
only
be
likely
to
trivialize
the
public
interest
considerations
underlying
the
balance
of
convenience
test,
it
would
be
at
odds
with
the
preventive
purpose
of
interlocutory
relief.
The
parties
drew
the
Court’s
attention
to
about
ten
decisions
on
applications
to
impound
documents
incidental
to
a
constitutional
challenge
based
on
sections
40
and
40.1
of
the
Act.
Clearly
these
few
decisions
are
far
from
suggesting
the
existence
of
a
"flood
of
actions”.
It
is
significant,
however,
that
all
motions
to
impound
subsequent
to
the
decision
of
the
Court
of
Appeal
in
Zeppetelli,
supra,
have
been
granted.
Needless
to
say,
the
orders
expressly
cited
the
reasons
given
by
Baudouin
J.A.
By
way
of
contrast,
the
applications
to
impound
prior
to
that
decision
were
denied
(except
the
one
in
Ameublement
Jeanne
Inc.
v.
Quebec
(Attorney
General),
Sup.
Ct.
Montréal,
No.
500-05-003335-872,
April
15,
1987,
which
was
granted
on
consent).
For
example,
in
Brochetterie
Tino
Inc.
v.
Quebec
(Attorney
General),
Sup.
Ct.
Montréal,
No.
500-05-008861-898,
July
17,
1989,
[1989]
R.D.F.Q.
98,
Lesyk
J.
wrote
(at
pages
3-4
of
the
judgment):
Granting
impoundment
of
the
documents
seized
would
set
a
precedent
in
enforcement
of
the
Act
that
might
be
followed
in
seizures
of
the
same
kind
and
might
accordingly
render
sections
40
and
40.1
of
the
Act
respecting
the
Ministère
du
Revenue
inoperative
for
a
more
or
less
extended
period,
with
the
consequences
that
might
follow
for
the
obligations
and
duties
imposed
on
the
operators
of
the
establishments
subject
to
the
Meals
and
Hotels
Tax
Act.
Granting
the
application
to
impound
without
extremely
sound
and
exceptional
grounds,
which
do
not
exist
in
the
present
case,
would
also
amount
to
suspending
the
application
of
sections
40
and
40.1
of
the
Act
respecting
the
Ministère
du
Revenu
adopted
by
the
democratically
elected
National
Assembly
in
the
common
interest.
Such
impoundment
would
be
likely
to
temporarily
frustrate
pursuit
of
the
common
interest
and
would
have
the
effect
of
preventing
the
Minister
of
Revenue
from
carrying
out
the
duty
imposed
on
him
by
law,
namely
of
applying
tax
legislation.
When
a
Minister
of
the
Crown
is
prevented
from
exercising
the
powers
conferred
on
him
by
law
the
public
interest
of
which
the
Minister
is
the
guardian
suffers
irreparable
harm.
[Translation.]
This
approach
seems
to
me
to
be
consistent
with
the
above-cited
passages
from
RJR-MacDonald
and
Metropolitan
Stores.
See
also
Restaurant
le
Gourmet
grec
Inc
v.
Séguin,
Sup.
Ct.
Montréal,
No.
500-05-004272-892,
April
5,
1989,
[1989]
R.D.F.Q.
80,
where
Brassard
J.
refused
to
order
impoundment
on
the
ground
that
the
harm
alleged
by
the
applicant
could
not
override
the
public
interest.
In
any
event,
although
it
is
not
possible
to
speak
of
a
"flood
of
actions",
the
systematic
nature
of
the
impounding
orders
since
Zeppetelli
cannot
be
ignored,
and
this
can
only
be
enhanced
by
the
Court
of
Appeal
decisions
in
the
present
case.
To
the
extent
that
trial
courts
are
bound
by
decisions
of
the
Quebec
Court
of
Appeal,
it
is
doubtful
whether
they
have
much
real
manoeuvring
room
in
the
exercise
of
their
discretion.
Under
the
present
case
law
it
appears
that
any
well-informed
litigant
can
have
an
investigation
suspended
by
attaching
to
his
motion
for
evocation,
certiorari
and
mandamus
a
motion
to
impound
the
documents
seized.
The
marginal
nature
of
motions
to
impound
is
best
explained
by
the
limited
number
of
searches
conducted
each
year.
As
an
indication
of
the
impact
of
impoundment
on
the
public
interest
the
number
of
searches
is
certainly
a
better
yardstick
than
the
total
of
Quebec
taxpayers.
The
evidence
shows
that
implementation
of
the
investigative
powers
set
out
in
sections
40
and
40.1
of
the
Act
is
likely
to
lead
to
the
recovery
of
large
sums
estimated
at
about
a
hundred
million
dollars
in
fees,
interest
and
fines,
just
for
the
period
from
April
I,
1988
to
March
31,
1992.
The
amounts
involved
in
the
present
cases
are
also
non-negligible
since
they
exceed
$250,000,
not
including,
in
the
Tabah
case,
an
amount
of
some
one
million
dollars
which
was
allegedly
not
included
in
calculating
income.
Further,
if
we
are
to
believe
certain
studies
estimating
at
several
hundred
million
dollars
the
annual
losses
resulting
from
tax
evasion,
the
amounts
recovered
through
the
implementation
of
investigative
powers
are
only
the
tip
of
the
iceberg.
That
being
the
case,
we
cannot
minimize
the
importance
of
sections
40
and
40.1
of
the
Act,
which
form
the
principal
tool
available
to
the
Ministère
du
revenu
to
fight
tax
evasion,
not
only
in
dealing
with
ongoing
offences
but
especially
for
its
deterrent
value.
In
view
of
the
burden
of
proof
-beyond
a
reasonable
doubt-and
the
difficulties
of
proof
inherent
in
the
nature
of
offences
against
the
tax
laws,
even
temporarily
watering
down
investigative
powers
has
more
than
a
symbolic
effect
on
the
public
interest.
The
respondents
made
no
arguments
regarding
the
public
interest
in
maintaining
impounding
orders.
It
is
clear
that
there
is
also
a
public
interest
in
having
the
government
respect
the
fundamental
rights
of
taxpayers,
including
the
right
to
privacy
and
protection
against
unreasonable
intrusions
by
the
government.
However,
bearing
in
mind
that
in
the
present
case
the
courts
have
not
yet
found
the
intrusion
to
be
unreasonable—a
question
which
will
be
decided
in
the
principal
action,
with
the
appropriate
relief
if
necessary-this
aspect
cannot
have
much
weight
here,
especially
when
considered
in
light
of
the
comments
I
have
made
regarding
irreparable
harm.
In
other
words,
to
paraphrase
the
reasons
of
my
colleagues
in
RJR-MacDonald,
the
respondents
have
not
persuaded
me
of
the
advantages
to
the
public
interest
of
granting
impoundment
of
the
documents
seized.
Conclusion
For
these
reasons
I
would
allow
the
appeal
with
costs,
set
aside
the
decisions
of
the
Court
of
Appeal
and
quash
the
impounding
orders.
Appeal
allowed
with
costs;
orders
quashed.
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