Lysyk,
J.:—The
petitioners
seek
an
order
quashing
a
warrant
to
enter
and
search
issued
by
McEachern,
C.J.
on
February
27,
1987
pursuant
to
section
231.3
of
the
Income
Tax
Act,
S.C.
1970-71-72,
c.
63,
as
amended
("the
Act”).
The
warrant
was
executed
on
March
2,
1987.
The
present
application
initially
came
before
McKenzie,
J.,
who
considered
all
of
the
grounds
relied
upon
by
the
petitioners
except
their
challenge
to
the
constitutional
validity
of
section
231.3
of
the
Act
based
on
alleged
inconsistency
with
certain
provisions
of
the
Canadian
Charter
of
Rights
and
Freedoms
("the
Charter").
The
reasons
of
McKenzie,
J.
are
now
reported:
15
B.C.L.R.
(2d)
200.
He
concluded
as
follows
(at
pp.
223-4):
This
petition
insofar
as
it
is
based
on
non-constitutional
and
non-Charter
argument
fails.
By
agreement
with
counsel,
the
constitutional
and
Charter
arguments,
including
any
arguments
relating
to
the
vires
of
any
sections
of
the
Income
Tax
Act,
are
reserved
for
another
day.
I
see
no
absolute
necessity
for
me
to
hear
those
arguments
as
they
are
separate
arguments
but,
if
counsel
would
prefer
to
avoid
the
necessity
of
educating
another
judge
concerning
the
facts,
I
have
no
objection
to
hearing
them
out,
but
I
do
not
bind
myself
to
the
task
nor
do
I
consider
myself
seized
of
that
aspect
of
the
petition.
Any
consideration
of
costs
will
be
deferred
until
the
ultimate
outcome
is
known
or
until
further
order.
McKenzie,
J.
was
not
available
when
this
matter
came
on
for
hearing
of
the
constitutional
argument.
The
parties,
through
their
solicitors,
agreed
that
I
had
jurisdiction
to
deal
with
these
remaining
issues.
The
impugned
legislation
and
the
issues
The
facts
and
litigation
history
are
fully
reviewed
in
the
reasons
delivered
by
McKenzie,
J.
The
section
of
the
Act
containing
the
impugned
provisions
reads
as
follows:
231.3
(3)
A
judge
may,
on
ex
parte
application
by
the
Minister,
issue
a
warrant
in
writing
authorizing
any
person
named
therein
to
enter
and
search
any
building,
receptacle
or
place
for
any
document
or
thing
that
may
afford
evidence
as
to
the
commission
of
an
offence
under
this
Act
and
to
seize
and,
as
soon
as
practicable,
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
(2)
An
application
under
subsection
(1)
shall
be
supported
by
information
on
oath
establishing
the
facts
on
which
the
application
is
based.
(3)
A
judge
shall
issue
the
warrant
referred
to
in
subsection
(1)
where
he
is
satisfied
that
there
are
reasonable
grounds
to
believe
that
(a)
an
offence
under
this
Act
has
been
committed;
(b)
a
document
or
thing
that
may
afford
evidence
of
the
commission
of
the
offence
is
likely
to
be
found;
and
(c)
the
building,
receptacle
or
place
specified
in
the
application
is
likely
to
contain
such
a
document
or
thing.
(4)
A
warrant
issued
under
subsection
(1)
shall
refer
to
the
offence
for
which
it
is
issued,
identify
the
building,
receptacle
or
place
to
be
searched
and
the
person
alleged
to
have
committed
the
offence
and
it
shall
be
reasonably
specific
as
to
any
document
or
thing
to
be
searched
for
and
seized.
(5)
Any
person
who
executes
a
warrant
under
subsection
(1)
may
seize,
in
addition
to
the
document
or
thing
referred
to
in
subsection
(1),
any
other
document
or
thing
that
he
believes
on
reasonable
grounds
affords
evidence
of
the
commission
of
an
offence
under
this
Act
and
shall
as
soon
as
practicable
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
who
issued
the
warrant
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
(6)
Subject
to
subsection
(7),
where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
shall,
unless
the
Minister
waives
retention,
order
that
it
be
retained
by
the
Minister,
who
shall
take
reasonable
care
to
ensure
that
it
is
preserved
until
the
conclusion
of
any
investigation
into
the
offence
in
relation
to
which
the
document
or
thing
was
seized
or
until
it
is
required
to
be
produced
for
the
purposes
of
a
criminal
proceeding.
(7)
Where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
may,
of
his
own
motion
or
on
summary
application
by
a
person
with
an
interest
in
the
document
or
thing
on
three
clear
days
notice
of
application
to
the
Deputy
Attorney
General
of
Canada,
order
that
the
document
or
thing
be
returned
to
the
person
from
whom
it
was
seized
or
the
person
who
is
otherwise
legally
entitled
thereto
if
the
judge
is
satisfied
that
the
document
or
thing
(a)
will
not
be
required
for
an
investigation
or
a
criminal
proceeding;
or
(b)
was
not
seized
in
accordance
with
the
warrant
or
this
action.
(8)
The
person
from
whom
any
document
or
thing
is
seized
pursuant
to
this
section
is
entitled,
at
all
reasonable
times
and
subject
to
such
reasonable
conditions
as
may
be
imposed
by
the
Minister,
to
inspect
the
document
or
thing
and
to
obtain
one
copy
of
the
document
at
the
expense
of
the
Minister.
In
overview,
section
231.3
provides
for
seizure
of
documents
or
things
following
issuance
of
a
warrant
by
a
judge
pursuant
to
subsection
(1).
The
section
deals
with
two
kinds
of
seiure,
those
under
subsection
(1)
and
those
under
subsection
(5).
The
former
type
of
seizure,
which
I
will
for
convenience
sometimes
refer
to
as
“primary”,
involves
seizure
of
the
documents
or
things
which
are
described
in
the
warrant,
which
description
is
required
by
the
terms
of
subsection
(4)
to
be
"reasonably
specific".
The
other
type
of
seizure,
which
is
provided
for
by
subsection
(5)
and
which
I
will
sometimes
refer
to
as
"secondary",
involves
seizure
of
documents
or
things
not
identified
in
the
warrant
which
the
person
executing
the
warrant
"believes
on
reasonable
grounds
affords
evidence
of
the
commission
of
an
offence
under
this
Act.”
The
petitioners
challenge
the
validity
of
the
provisions
dealing
with
both
primary
and
secondary
forms
of
seizure,
that
is
to
say,
subsections
(1)
to
(4)
dealing
with
seizure
under
warrant
and
subsection
(5)
dealing
with
seizure
of
additional
items
in
conjunction
with
execution
of
a
warrant.
Subsections
(6)
and
(7)
are
challenged
only
in
so
far
as
they
make
reference
to
and
depend
upon
(in
the
sense
of
not
being
severable
from)
the
foregoing
provisions.
Subsection
(8)
is
not
impugned.
The
material
filed
by
the
petitioners
challenges
the
validity
of
these
enactments
on
the
basis
of
inconsistency
with
three
provisions
of
the
Charter:
sections
7,
8
and
15.
However,
counsel
for
the
petitioners
did
not
advance
a
separate
oral
submission
relating
to
section
7
of
the
Charter,
which
reads
as
follows:
7.
Everyone
has
the
right
to
life,
liberty
and
security
of
the
person
and
the
right
not
to
be
deprived
thereof
except
in
accordance
with
the
principles
of
fundamental
justice.
In
the
notes
of
argument
he
supplied
to
the
court,
counsel
for
the
petitioners
limited
his
treatment
of
section
7
to
quotations
from
the
principal
judgment,
delivered
by
Lamer,
J.,
in
Re
B.C.
Motor
Vehicle
Act,
[1985]
2
S.C.R.
486.
Those
extracts
(from
pp.
501-503
and
512)
are
particularly
instructive
on
the
relationship
between
legal
rights
guaranteed
by
the
terms
of
section
7
and
legal
rights
guaranteed
by
sections
8-14
and
also
on
the
scope
and
content
of
the
words
“principles
of
fundamental
justice"
in
section
7.
But
the
role
of
section
7
in
the
circumstances
of
the
present
application
was
not
elucidated
and
is
not
self-evident.
In
so
far
as
legal
rights
are
concerned,
it
is
clear
that
the
thrust
of
the
petitioners'
case
rests
on
the
section
8
guarantee
of
the
right
to
be
secure
against
unreasonable
search
or
seizure.
In
the
absence
of
argument
based
on
principle
or
authority
clearly
on
point,
I
find
no
basis
for
the
suggestion
that
section
7
imposes
separate
and
distinct
constitutional
requirements,
additional
to
those
inherent
in
section
8,
against
which
the
impugned
enactments
are
to
be
tested.
I
turn,
therefore,
to
the
petitioners'
arguments
relating
to
the
legal
right
guaranteed
by
section
8
and
the
equality
rights
guaranteed
by
section
15.
Unreasonable
search
or
seizure
Section
8
of
the
Charter
reads
as
follows:
8.
Everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure.
The
constitutional
question
raised
by
the
express
terms
of
the
clause
is
whether
the
provisions
of
section
231.3
of
the
Act
provide
a
mandate
for
unreasonable
searches
or
seizures.
For
guidelines
as
to
what
is
reasonable
and
what
is
not
in
this
context
it
is
necessary
to
turn
to
the
case
law.
The
leading
authority
on
the
section
8
requirement
of
reasonableness
is
Hunter
v.
Southam
Inc.,
[1984]
2
S.C.R.
145;
84
D.T.C.
6467.
There,
search
and
seizure
provisions
contained
in
subsections
10(1)
and
(3)
of
the
Combines
Investigation
Act,
R.S.C.
1970,
c.
C-23
were
struck
down
as
falling
short
of
the
minimum
constitutional
standards
imposed
by
section
8
in
two
respects.
First,
there
was
no
provision
for
prior
authorization
by
a
neutral
arbiter.
Second,
the
criteria
for
issuing
an
authorization
for
entry,
search
and
seizure
failed
to
provide
an
adequate
standard
against
which
to
test
an
applicant's
grounds
for
belief
that
an
offence
had
been
committed
and
that
evidence
was
to
be
found
at
the
place
of
search.
The
analysis
in
Hunter
v.
Southam
was
applied
in
three
appellate
court
decisions
where
challenges
were
successfully
made
to
the
constitutional
validity
of
the
search
and
seizure
provisions
of
the
Act
which
were
the
predecessors
of
those
impugned
on
the
present
application.
Prior
to
their
replacement
by
the
provisions
now
under
review,
the
Act
provided
for
Ministerial
authorizations
with
the
approval
of
a
judge
pursuant
to
subsections
231(4)
and
(5),
which
read
as
follows:
(4)
Where
the
Minister
has
reasonable
and
probable
grounds
to
believe
that
a
violation
of
this
Act
or
a
regulation
has
been
committed
or
is
likely
to
be
committed,
he
may,
with
the
approval
of
a
judge
of
a
superior
or
county
court,
which
approval
the
judge
is
hereby
empowered
to
give
on
ex
parte
application,
authorize
in
writing
any
officer
of
the
Department
of
National
Revenue,
together
with
such
members
of
the
Royal
Canadian
Mounted
Police
or
other
peace
officers
as
he
calls
on
to
assist
him
and
such
other
persons
as
may
be
named
therein,
to
enter
and
search,
if
necessary
by
force,
any
building,
receptacle
or
place
for
documents,
books,
records,
papers
or
things
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation
and
to
seize
and
take
away
any
such
documents,
books,
records,
papers
or
things
and
retain
them
until
they
are
produced
in
any
court
proceedings.
(5)
An
application
to
a
judge
under
subsection
(4)
shall
be
supported
by
evidence
on
oath
establishing
the
facts
upon
which
the
application
is
based.
In
M.N.R.
v.
Kruger,
[1984]
C.T.C.
506;
84
D.T.C.
6478
(F.C.A.),
subsection
231(4)
was
held
to
contravene
section
8
of
the
Charter
in
that
it
conferred
upon
the
Minister,
when
he
believed
one
particular
offence
had
been
committed,
the
power
to
authorize
a
general
search
and
seizure
relating
to
the
violation
of
any
of
the
provisions
of
the
Act
or
regulations
made
under
it.
Kruger
was
followed
in
another
decision
of
the
Federal
Court
of
Appeal
issued
on
the
same
day
—
Vespoli
v.
The
Queen,
[1984]
C.T.C.
519;
84
D.T.C.
6489
—
and
applied
in
The
Queen
v.
Print
Three
Inc.,
[1985]
2
C.T.C.
48;
85
D.T.C.
5303
(Ont.
C.A.),
where
the
following
additional
reasons
were
supplied
for
concluding
that
subsection
231(4)
violated
section
8
of
the
Charter
(at
p.
50;
D.T.C.
5305):
In
our
view,
there
are
additional
reasons
to
those
relied
upon
by
the
Federal
Court
of
Appeal
for
holding
the
subsection
to
be
in
breach
of
section
8.
It
is
clear
that
to
meet
the
standards
of
reasonableness
there
must
first
be
an
independent
arbiter
(judge)
who
is
satisfied
that
there
are
reasonable
grounds
for
believing
that
an
offence
has
been
committed
(see
Hunter
et
al.
v.
Southam
Inc.,
supra).
In
subsections
231(4)
and
(5),
it
is
the
Minister
who
has
to
have
the
reasonable
and
probable
grounds
and
there
is
no
standard
or
conditions
precedent
set
out
for
the
judge
on
which
to
base
his
assessment
of
whether
the
Minister's
belief
is
properly
founded.
Mr.
Kelly
argued
that
the
only
reasonable
construction
of
subsection
(5)
is
that
facts
must
be
laid
before
the
judge
so
he
can
be
satisfied
that
the
Minister
has
reasonable
and
probable
grounds.
Even
if
the
subsection
could
be
so
construed,
there
are,
as
we
have
noted,
additional
flaws
in
subsections
231(4)
and
(5).
There
is
no
requirement
that
the
Minister
have
grounds
to
believe
that
evidence
is
likely
to
be
found
at
the
place
of
the
search
and
there
is
no
requirement
that
he
present
such
grounds
to
the
judge.
There
is,
equally,
no
direction
as
to
what
is
to
be
issued
by
the
judge
in
granting
his
“approval”.
It
is
the
Minister
who
issues
what
is,
in
essence,
the
warrant.
Finally
the
Minister
is
not
required
in
the
authorization
to
specify
the
things
to
be
searched
for.
Following
these
decisions
the
Act
was
amended
to
replace
subsection
231(4)
by
the
provisions
challenged
on
the
present
application.
The
new
section
231.3,
which
came
into
force
on
February
13,
1986,
has
survived
two
constitutional
challenges
at
the
trial
level.
In
Kohli
v.
Moase
(Dec.
17,
1987),
unreported
(N.B.Q.B.),
Higgins,
J.
observed
that
section
231.3
appeared
to
respond
directly
to
the
concerns
expressed
in
Hunter
v.
Southam
Inc.,
supra,
and
met
the
minimum
standards
set
by
that
decision
(p.
23).
Similarly,
in
Solvent
Petroleum
Extraction
Inc.,
et
al.
v.
M.N.R.,
[1988]
1
C.T.C.
325:
88
D.T.C.
6224,
Dubé,
J.
reviewed
the
Print
Three
decision,
outlined
the
grounds
there
set
out
for
holding
the
former
subsection
231(4)
of
the
Act
to
be
in
contravention
of
section
8
of
the
Charter,
and
concluded
(at
pp.
330;
D.T.C.
6228)
that
section
231.3
was
designed
to
remedy
and
did
remedy
the
defects
identified
in
the
latter
decision.
With
respect
to
what
I
have
termed
primary
seizures,
that
is,
seizures
pursuant
to
the
terms
of
a
warrant
issued
under
subsection
(1),
I
agree
with
the
conclusions
reached
in
the
Kohli
and
Solvent
Petroleum
decisions
and,
with
one
exception,
do
not
find
it
necessary
to
go
beyond
the
reasons
there
provided.
The
exception
relates
to
an
argument
advanced
by
Mr.
Du
Pont
on
behalf
of
the
petitioners
on
a
point
not
canvassed
in
either
of
those
two
decisions.
He
pointed
out
that
in
relation
to
primary
seizures
subsection
(3)
requires
the
issuing
judge
to
be
satisfied
that
there
are
“reasonable
grounds
to
believe”
the
three
things
specified
in
paragraphs
(a),
(b)
and
(c)
and
similarly,
in
relation
to
secondary
seizures,
subsection
(5)
provides
that
the
person
executing
a
warrant
may
seize
additional
documents
or
things
if
he
"believes
on
reasonable
grounds"
that
evidence
of
commission
of
an
offence
will
thereby
be
afforded.
These
provisions,
he
argued,
do
not
provide
a
standard
high
enough
to
meet
the
constitutional
requirements
of
section
8
of
the
Charter.
What
is
necessary,
in
his
submission,
is
belief
based
on
reasonable
and
probable
grounds.
Mr.
Du
Pont
points
out
that
the
former
subsection
231(4)
of
the
Act
required
the
Minister
to
have
"reasonable
and
probable
grounds
to
believe”
that
an
offence
had
been
or
was
likely
to
be
committed.
In
this
respect,
he
argues,
the
new
section
231.3
represents
a
constitutionally
unacceptable
"watering
down"
of
the
minimum
standard.
For
the
respondents,
Mr.
McKinnon
argues
that
the
demands
of
section
8
of
the
Charter
are
fully
satisfied
with
the
demonstration
of
"reasonable"
grounds
for
belief.
He
points
out
that
the
search
warrant
provisions
contained
in
section
443
of
the
Criminal
Code
are
similar
to
the
impugned
provisions
of
the
Act
in
this
respect.
Subsection
443(1)
speaks
in
terms
of
the
issuing
justice
being
satisfied
by
information
upon
oath
that
there
is
"reasonable
ground
to
believe”
the
matters
therein
specified.
The
only
Canadian
authority
cited
by
counsel
relating
to
the
relevant
objective
standard
is
the
following
passage
from
the
judgment
in
Hunter
v.
Southam
Inc.,
supra,
at
S.C.R.
167-8;
D.T.C.
64-77:
The
purpose
of
an
objective
criterion
for
granting
prior
authorization
to
conduct
a
search
or
seizure
is
to
provide
a
consistent
standard
for
identifying
the
point
at
which
the
interests
of
the
state
in
such
intrusions
come
to
prevail
over
the
interests
of
the
individual
in
resisting
them.
To
associate
it
with
an
applicant’s
reasonable
belief
that
relevant
evidence
may
be
uncovered
by
the
search,
would
be
to
define
the
proper
standard
as
the
possibility
of
finding
evidence.
This
is
a
very
low
standard
which
would
validate
intrusion
on
the
basis
of
suspicion,
and
authorize
fishing
expeditions
of
considerable
latitude.
It
would
tip
the
balance
strongly
in
favour
of
the
state
and
limit
the
right
of
the
individual
to
resist,
to
only
the
most
egregious
intrusions.
I
do
not
believe
that
this
is
a
proper
standard
for
securing
the
right
to
be
free
from
unreasonable
search
and
seizure.
[Emphasis
in
original]
Anglo-Canadian
legal
and
political
traditions
point
to
a
higher
standard.
The
common
law
required
evidence
on
oath
which
gave
"strong
reasons
to
believe"
that
stolen
goods
were
concealed
in
the
place
to
be
searched
before
a
warrant
would
issue.
Section
443
of
the
Criminal
Code
authorizes
a
warrant
only
where
there
has
been
information
upon
oath
that
there
is
"reasonable
ground
to
believe"
that
there
is
evidence
of
an
offence
in
the
place
to
be
searched.
The
American
Bill
of
Rights
provides
that
"no
Warrants
shall
issue,
but
upon
probable
cause,
supported
by
Oath
or
affirmation
.
.
."
The
phrasing
is
slightly
different
but
the
standard
in
each
of
these
formulations
is
identical.
The
state's
interest
in
detecting
and
preventing
crime
begins
to
prevail
over
the
individual’s
interest
in
being
left
alone
at
the
point
where
credibly-based
probability
replaces
suspicion.
History
has
confirmed
the
appropriateness
of
this
requirement
as
the
threshold
for
subordinating
the
expectation
of
privacy
to
the
needs
of
law
enforcement.
Where
the
state's
interest
is
not
simply
law
enforcement
as,
for
instance,
where
state
security
is
involved,
or
where
the
individual’s
interest
is
not
simply
his
expectation
of
privacy
as,
for
instance,
when
the
search
threatens
his
bodily
integrity,
the
relevant
standard
might
well
be
a
different
one.
That
is
not
the
situation
in
the
present
case.
In
cases
like
the
present,
reasonable
and
probable
grounds,
established
upon
oath,
to
believe
that
an
offence
has
been
committed
and
that
there
is
evidence
to
be
found
at
the
place
of
the
search,
constitutes
the
minimum
standard,
consistent
with
s.
8
of
the
Charter,
for
authorizing
search
and
seizure.
In
so
far
as
subss.
10(1)
and
10(3)
of
the
Combines
Investigation
Act
do
not
embody
such
a
requirement,
I
would
hold
them
to
be
further
inconsistent
with
s.
8.
[Emphasis
mine.]
Both
counsel
found
comfort
in
the
second
paragraph
of
the
above
quoted
passage.
Mr.
Du
Pont
points
to
the
second
emphasized
passage
where
reference
is
made
to
"reasonable
and
probable
grounds."
Mr.
McKinnon
naturally
prefers
the
first
emphasized
passage
where,
having
noted
the
different
phrasings
employed
at
common
law,
in
section
443
of
the
Criminal
Code,
and
in
the
American
Bill
of
Rights,
it
is
concluded
that
"the
standard
in
each
of
these
formulations
is
identical".
Most
significantly,
the
passage
does
not
appear
to
cast
doubt
upon
the
formulation
in
section
443
of
the
Code,
which
is
indistinguishable
in
that
respect
from
the
enactments
presently
under
review.
In
Re
Times
Square
Book
Shop
and
The
Queen
(1985),
21
C.C.C.
(3d)
503
(Ont.
C.A.),
Cory,
J.A.,
delivering
the
judgment
of
the
court,
stated
(at
p.
507):
"In
light
of
the
decision
of
the
Supreme
Court
of
Canada
in
Hunter
et
al.
v.
Southam
Inc.
[citations
omitted]
there
can
be
no
doubt
that
s.
443
of
the
Code
complies
with
the
requirements
set
out
in
s.
8
of
the
Charter."
Like
the
Kohli
and
Solvent
Petroleum
decisions
relating
to
section
231.3
of
the
Act,
however,
the
Times
Square
decision
did
not
address
the
point
presently
under
consideration.
In
his
able
submissions
on
this
point
counsel
for
the
petitioners
placed
much
reliance
on
the
jurisprudence
relating
to
the
United
States
Bill
of
Rights
and,
specifically,
the
Fourth
Amendment,
which
reads
as
follows:
The
right
of
the
people
to
be
secure
in
their
persons,
houses,
papers,
and
effects,
against
unreasonable
searches
and
seizures,
shall
not
be
violated,
and
no
Warrants
shall
issue,
but
upon
probable
cause,
supported
by
Oath
or
affirmation,
particularly
describing
the
place
to
be
searched,
and
the
persons
or
things
to
be
seized.
While
the
Charter,
in
section
8,
provides
a
corresponding
right
to
be
secure
against
"unreasonable"
search
or
seizure,
it
contains
no
counterpart
to
the
Fourth
Amendment's
second
clause,
which
deals
expressly
with
the
issuance
of
warrants.
Given
the
Fourth
Amendment's
express
prohibition
on
the
issuance
of
warrants
except
upon
“probable
cause”,
it
is
not
surprising
that
those
words
figure
importantly
in
the
extensive
American
jurisprudence
on
search
and
seizure.
Yet
the
scope
of
the
expression
"probable
cause"
remains
unclear:
see,
e.g.,
Wasserstrom,
"The
Incredible
Shrinking
Fourth
Amendment"
(1984)
21
American
Crim.
L.
rev.
257,
at
p.
305,
where
the
author
comments:
“In
view
of
the
centrality
of
the
probable
cause
requirement
to
both
the
theory
and
practice
of
fourth
amendment
law,
it
is
perhaps
surprising
that
the
Supreme
Court
has
never
tried
to
explain
its
precise
meaning."
The
second
clause
of
the
Fourth
Amendment
has
coloured
the
development
of
the
American
doctrine
to
an
extent
which
renders
it
hazardous
and
perhaps
undesirable
to
place
undue
reliance
upon
it
in
construing
section
8
of
the
Charter.
In
R
v.
Rao
(1984),
46
O.R.
(2d)
80;
40
C.R.
(3d)
1
(Ont.
C.A.)
Martin,
J.A.,
delivering
the
judgment
of
the
court,
made
these
observations
(at
page
29
[106
O.R.]):
.
.
.[T]he
omission
from
s.
8
of
the
Charter
of
a
warrant
provision
similar
to
that
contained
in
the
second
clause
of
the
Fourth
Amendment
signals
caution
in
the
extent
of
the
use
of
the
American
jurisprudence
under
the
Fourth
Amendment.
There
is
an
additional
reason
for
the
exercise
of
caution
in
the
use
of
American
jurisprudence.
The
case
law
under
the
Fourth
Amendment
is
replete
with
refined
distinctions
which,
in
my
view,
ought
to
be
avoided
in
developing
our
jurisprudence
under
s.
8
of
the
Charter.
Moreover,
the
decisions
under
the
Fourth
Amendment
are
not
always
clear
or
consistent,
and
it
is
evident
that
some
American
commentators
consider
that
the
state
of
the
jurisprudence
on
the
Fourth
Amendment
is
far
from
satisfactory:
.
.
.
To
the
same
effect,
see
Re
Times
Square
Book
Store
and
The
Queen,
supra,
at
page
509
et
seq.
In
my
view,
the
proposition
for
which
Mr.
Du
Pont
contends,
whether
or
not
supportable
in
American
jurisprudence,
is
the
kind
of
"refined
distinction”
(to
borrow
the
language
of
Martin,
J.A.)
which
ought
not
to
be
adopted
without
a
clear
understanding
of
its
import.
In
what
sort
of
circumstances,
it
may
be
asked,
would
a
judge
to
whom
an
application
for
a
warrant
is
made
be
apt
to
find
that
the
grounds
for
belief
were
to
his
satisfaction
"reasonable"
but
not
"probable"
The
American
authorities
are
considered
in
the
Canada
Law
Reform
Commission's
working
paper
30
entitled
Police
Powers:
Search
and
Seizure
in
Criminal
Law
Enforcement
(1983)
and
in
its
Report
on
Search
and
Seizure
(1984).
It
is
noteworthy
that
the
standard
proposed
by
the
Commission
throughout
is
simply
that
of
belief
on
“reasonable”
grounds.
The
sole
standard
explicitly
supplied
by
section
8
of
the
Charter
is
that
of
reasonableness.
Authority
does
not
establish
and,
in
my
view,
principle
does
not
commend
the
proposition
contended
for
by
the
petitioners
to
the
effect
that
absence
of
a
statutory
requirement
for
probable
as
well
as
reasonable
grounds
for
belief
is
constitutionally
fatal.
I
turn
next
to
the
petitioners'
attack
on
subsection
(5)
of
section
231.3,
with
its
provision
for
what
I
have
termed
secondary
seizures.
Like
section
445
of
the
Criminal
Code,
subsection
231.3
(5)
provides
that
a
person
executing
a
warrant
may
seize
certain
items
in
addition
to
those
mentioned
in
the
warrant.
However,
the
objects
of
such
seizure
differ.
Section
445
of
the
Code
provides
for
seizure
of
such
additional
things
as
are
believed
on
reasonable
grounds
to
have
been
obtained
by
or
used
in
the
commission
of
an
offence.
Subsection
231.3
(5)
of
the
Act
provides
for
seizure
of
such
additional
documents
or
things
as
are
believed
on
reasonable
grounds
to
afford
evidence
of
the
commission
of
an
offence
under
the
Act.
Unlike
the
Code
provision,
therefore,
subsection
231.3
(5)
of
the
Act
authorizes
the
seizure
of
items
of
a
purely
evidentiary
nature.
The
constitutional
question
is
whether
this
legislative
mandate
to
seize
such
additional
documents
and
things
believed
to
afford
evidence
of
an
offence
is
inconsistent
with
the
Charter's
section
8
guarantee
of
security
against
unreasonable
search
and
seizure.
Counsel
for
the
petitioners
again
relies
heavily
on
the
American
jurisprudence
and,
in
particular,
on
the
authorities
relating
to
the
scope
of
the
so-
called
“plain
view"
doctrine.
For
purposes
of
the
present
application,
I
find
it
unnecessary
to
rule
upon
the
constitutional
validity
of
subsection
(5)
of
section
231.3.
That
is
so
for
the
following
reasons.
The
respondents'
position,
clearly
and
forcefully
expressed
by
Mr.
McKinnon,
is
that
nothing
was
seized
by
way
of
a
secondary
seizure
pursuant
to
subsection
(5).
The
respondents
say
that
all
of
the
documents
taken
were
the
subject
of
the
primary
seizure
effected
under
subsection
(1)
and
pursuant
to
the
requirements
of
subsections
(2)
to
(4).
Mr.
McKinnon
points
to
passages
in
the
reasons
of
McKenzie,
J.
(at
B.C.L.R.
214
and
216)
to
the
effect
that
a
careful
reading
of
the
material
filed
on
the
application
for
the
warrant
disclosed
"the
whole
story"
and
that
any
problem
was
merely
compositional
in
nature.
Nothing
in
McKenzie,
J.'s
reasons
indicates
reliance
on
subsection
(5)
powers
of
secondary
seizure.
Mr.
McKinnon
points
out
that
if
subsection
(5)
were
relied
upon
by
the
respondents
they
would
have
been
obliged
under
the
terms
of
that
subsection
to
bring
documents
seized
pursuant
to
it
to
the
attention
of,
or
to
make
a
postseizure
report
in
respect
thereof
to,
the
issuing
judge
or
another
judge
of
this
court.
There
is
nothing
before
me,
he
argues,
to
disclose
reliance
upon
subsection
(5)
or
to
support
the
consequent
inference
that
the
respondents
have
ignored
the
post-seizure
requirements
imposed
by
that
subsection.
I
accept
the
respondents'
submission
on
this
point.
The
factual
basis
for
engaging
subsection
(5)
has
not
been
made
out
on
this
application
and
the
constitutional
question
ought
not
to
be
ruled
upon
in
the
abstract.
The
validity
of
subsection
(5)
would
be
properly
in
issue
if,
but
only
if,
a
finding
that
it
was
ultra
vires
would
place
in
jeopardy
the
validity
of
the
provisions
of
section
231.3
relating
to
primary
seizures.
The
question
raised
relates
to
severability.
The
classic
test
for
severance,
recently
reaffirmed
by
Wilson,
J.
in
Edwards
Books
and
Art
Limited
v.
The
Queen,
[1986]
2
S.C.R.
713
at
811,
is
set
out
in
Attorney
General
for
Alberta
v.
Attorney
General
for
Canada
(Reference
re
Alberta
Bill
of
Rights),
[1947]
A.C.
503
p.
518:
The
real
question
is
whether
what
remains
is
so
inextricably
bound
up
with
the
part
declared
invalid
that
what
remains
cannot
independently
survive
or,
as
it
has
sometimes
been
put,
whether
on
a
fair
review
of
the
whole
matter
it
can
be
assumed
that
the
legislature
would
have
enacted
what
survives
without
enacting
the
part
that
is
ultra
vires
at
all.
Although
it
is
the
case
that
subsections
(6)
and
(7)
refer
to
seizures
both
under
subsection
(1)
and
subsection
(5),
the
provisions
of
the
impugned
enactment
relating
to
primary
seizures
cannot
be
said
to
be
so
intertwined
with
those
relating
to
secondary
seizures
under
subsection
(5)
so
as
to
preclude
severance
of
the
latter
should
it
be
found
ultra
vires.
I
believe
it
can
safely
be
assumed
that
Parliament
would
have
enacted
section
231.3
without
subsection
(5).
Accordingly,
the
petitioners'
challenge
to
the
validity
of
the
legislation,
in
so
far
as
it
is
based
on
section
8
of
the
Charter,
fails.
Equality
rights
The
petitioners
say
that
the
impugned
legislation
violates
equality
rights
guaranteed
by
subsection
15
(1)
of
the
Charter,
which
reads
as
follows:
15.-(1)
Every
individual
is
equal
before
and
under
the
law
and
has
the
right
to
the
equal
protection
and
equal
benefit
of
the
law
without
discrimination
and,
in
particular,
without
discrimination
based
on
race,
national
or
ethnic
origin,
colour,
religion,
sex,
age
or
mental
or
physical
disability.
There
are
two
branches
to
the
submission
advanced
on
behalf
of
the
petitioners
based
on
section
15.
The
first
is
that
the
rights
of
appeal
of
taxpayers
in
respect
of
issuance
of
warrants
under
the
impugned
enactments
are
not,
or
may
not
be,
uniform
in
all
of
the
provinces.
Mr.
Du
Pont's
point
of
departure
for
this
submission
is
Goodman
v.
Rompkey,
[1982]
1
S.C.R.
589,
[1982]
C.T.C.
192,
which
held
that
no
appeal
lay
to
the
Quebec
Court
of
Appeal
from
an
approval
given
by
a
Superior
Court
judge
to
an
authorization
to
enter
and
seize
pursuant
to
former
subsection
231
(4)
of
the
Act.
Mr.
Du
Pont's
submission,
as
I
understood
it,
was
that
the
same
result
can
be
expected
now
with
respect
to
issuance
of
a
warrant
by
a
judge
of
the
Quebec
Superior
Court
pursuant
to
the
present
section
231.3.
In
his
submission,
however,
there
is
some
support
in
the
authorities
for
the
existence
of
a
right
to
appeal
in
analogous
circumstances
in
other
provinces.
The
alleged
inequality,
that
is
to
say,
is
geographic
in
nature.
For
present
purposes
I
will
assume,
without
stopping
to
review
the
cases
relied
upon
by
Mr.
Du
Pont,
that
the
rights
of
appeal
with
respect
to
section
231.3
are
not
entirely
uniform
across
Canada.
If
that
is
so,
and
even
if
one
makes
the
further
(large)
assumption
that
the
differences
in
question
are
capable
of
constituting
“discrimination”
within
the
meaning
of
subsection
15
(1)
of
the
Charter,
any
such
inequality
in
rights
of
appeal
does
not
flow
from
the
provisions
of
the
impugned
legislation
itself.
Accordingly,
striking
down
the
challenged
enactment
would
not
be
an
appropriate
response
to
the
problem.
Other
forms
of
relief
to
eliminate
the
alleged
disparity
in
treatment
were
not
proposed
and
consideration
of
them
at
this
stage
would
be
premature.
The
second
branch
of
Mr.
Du
Pont's
submission
is
based
on
different
appeal
options
available
depending
on
whether
a
warrant
is
sought
from
a
judge
pursuant
to
the
impugned
enactment
or,
alternatively,
from
a
justice
pursuant
to
section
443
of
the
Criminal
Code.
His
starting
point
for
this
argument
is
the
decision
in
Re
Multiform
Manufacturing
Co.
Ltd.
and
the
Queen
(1987),
33
C.C.C.
(3d)
521
(Que.
Sup.
Ct.),
where
it
was
held
that
a
search
warrant
may
be
obtained
under
subsection
443
(1)
of
the
Criminal
Code
for
purposes
of
enforcement
of
other
federal
statutes,
including
those
which
contain
their
own
provisions
for
search
and
seizure.
The
other
federal
statute
there
under
consideration
was
the
Bankruptcy
Act.
Mr.
Du
Pont
argues
that
subsection
15
(1)
of
the
Charter
is
violated
in
the
present
context
because
the
possibilities
for
review
and
appeal
of
the
issuance
of
a
search
warrant
differ
depending
on
whether
enforcement
officials
elect
to
seek
a
warrant
under
subsection
443
(1)
of
the
Code
or,
alternatively,
under
section
231.3
of
the
Act.
The
first
observation
I
would
make
is
that
in
the
Multiform
decision
itself
the
court
considered
and
rejected
a
submission
to
the
effect
that
differences
between
the
search
warrant
provisions
of
the
two
federal
enactments
gave
rise
to
“discrimination”
within
the
meaning
of
section
15
of
the
Charter
(at
pp.
532-4).
I
agree
with
that
conclusion.
If
such
differences
did
give
rise
to
discrimination
in
the
relevant
sense,
it
would
be
necessary
again
to
consider
the
appropriateness
of
seeking
to
cure
the
problem
by
striking
down
one
(or
both?)
of
the
enactments.
The
petitioner's
submission
based
on
section
15
of
the
Charter
is
rejected.
Conclusion
The
challenge
to
the
constitutional
validity
of
section
231.3
of
the
Act
fails.
All
other
issues
having
been
determined
adversely
to
the
petitioners
by
McKenzie,
J.,
the
application
is
dismissed.
On
the
basis
that
this
was
in
the
nature
of
a
criminal
proceeding
the
respondents
did
not
seek
costs
and
none
are
ordered.
Application
dismissed.
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