Dubé,
J.:
—By
this
originating
motion
the
applicants
seek
an
order
pursuant
to
section
18
of
the
Federal
Court
Act
in
the
nature
of
certiorari
quashing
the
decision
(in
fact
two
decisions)
of
the
Minister
to
make
an
application
pursuant
to
subsection
231.3(1)
of
the
Income
Tax
Act
dated
March
15,
1988
for
the
issuance
of
a
search
warrant
to
enter
and
search
the
residence
of
the
applicant
Frederick
K.
Clayton
at
Dorchester,
Ontario
and
also
the
business
premises
of
the
applicant
F.K.
Clayton
Group
Limited
at
London,
Ontario.
The
documents
in
question
have
already
been
seized
in
1983
under
the
former
paragraph
231
(1)(d)
of
the
Income
Tax
Act
which
was
determined
to
be
illegal,
being
in
breach
of
section
8
of
the
Charter
of
Rights
and
Freedoms,
by
the
Trial
Division
of
the
Federal
Court.
The
Federal
Court
of
Appeal,
in
its
judgment
of
March
1988,
confirmed
the
decision
and
ordered
a
return
of
the
documents
to
the
taxpayer.
Meanwhile,
the
new
section
231.3
came
into
force
and
the
Minister
decided
to
make
a
fresh
application
to
seize
the
same
documents
and
informed
the
applicants
of
it.
That
application
to
the
Supreme
Court
of
Ontario
was
adjourned
pending
the
outcome
of
this
application
wherein,
as
mentioned
above,
the
applicants
seek
to
review
the
decision
of
the
Minister
to
seek
a
warrant
pursuant
to
section
231.3
of
the
Act.
The
first
issue
facing
the
applicants
is
whether
or
not
the
decision
of
the
Minister
to
apply
under
section
231.3
of
the
Income
Tax
Act
is
reviewable
under
section
18
of
the
Federal
Court
Act.
The
applicants
submit
that
the
Minister
in
exercising
his
decision-making
power
in
this
instance
is
a
"Federal
Board
Commission
or
other
Tribunal"
and
as
such
subject
to
review.
The
applicants
rely
on
Martineau
v.
Matsqui
Institution
Disciplinary
Board,
[1980]
1
S.C.R.
602
for
the
proposition
that
section
18
of
the
Federal
Court
Act
should
be
interpreted
in
a
liberal
manner:
a
restrictive
reading
of
section
18
would
defeat
Parliament's
clear
intention
to
provide
relief
from
the
actions
of
federal
tribunals.
As
Dickson,
J.,
as
he
then
was,
said
(at
page
615):
"I
am
therefore
averse
to
giving
the
Act
a
reading
which
would
defeat
that
intention
and
posit
a
diminished
scope
for
relief
from
the
actions
of
federal
tribunals”.
In
another
Supreme
Court
of
Canada
decision,
Operation
Dismantle
Inc.
et
al.
v.
Canada
et
al.,
[1985]
1
S.C.R.
441;
59
N.R.
1,
Dickson,
J.
also
said
(at
page
455;
NR.
14):
"that
Cabinet
decisions
fall
under
s.
32(1)(a)
of
the
Charter
and
are
therefore
reviewable
in
the
courts
and
subject
to
judicial
scrutiny
for
compatibility
with
the
Constitution”.
In
Retail,
Wholesale
et
al.
v.
Dolphin
Delivery
Ltd.
et
al.,
[1986]
2
S.C.R.
573,
McIntyre,
J.,
on
behalf
of
the
Supreme
Court,
said
that,
in
his
view,
section
32
of
the
Charter
specifies
the
actors
to
whom
the
Charter
will
apply:
"they
are
the
legislative,
executive
and
administrative
branches
of
Government".
In
my
view,
the
preliminary,
discretionary
decision
of
the
Minister
to
apply
under
the
new
section
231.3
for
a
search
warrant
is
not
reviewable
by
the
court
under
section
18
of
the
Federal
Court
Act.
It
is
not
a
decision
which
by
itself
affects
the
rights
or
interests
of
any
person.
It
is
merely
an
administrative
decision
to
apply
to
the
court
and
it
is
the
court,
not
the
Minister,
who
will
consider
the
evidence
and
decide
whether
or
not
to
issue
a
search
warrant.
It
is
the
decision
of
the
judge
hearing
the
application
and
granting
the
warrant
which
is
reviewable.
Parliament
provided
that
the
application
of
the
Minister
under
subsection
231.3(1)
is
to
be
ex
parte
implying,
of
course,
that
the
taxpayer
is
not
to
be
heard
at
that
stage.
The
Minister's
decision
to
apply
for
a
warrant
is
purely
a
procedural
step
and
as
such
does
not
release
the
general
supervisory
mechanism
of
the
court.
There
cannot
be
found
a
breach
of
the
duty
to
act
fairly
in
the
mere
application
to
the
court
for
a
warrant.
That
precursory
step
does
not
afford
the
taxpayer
the
procedural
protection
envisaged
by
Dickson,
J.
in
Martineau
v.
Matsqui,
supra.
In
M.N.R.
v.
Coopers
and
Lybrand,
[1978]
C.T.C.
829;
78
D.T.C.
6528,
the
Supreme
Court
of
Canada,
dealing
with
the
former
subsection
231(4)
of
the
Income
Tax
Act,
recognized
(at
page
835;
D.T.C.
6533):
"that
a
right
of
search
is
in
derogation
of
the
principles
of
the
common
law,
and
open
to
abuse".
Therefore,
Parliament
built
into
the
legislation
"an
immediate
review
of
the
ministerial
decision
by
interposing
a
judge
between
the
revenue
and
the
taxpayer
.
.
.
Indication
of
parliamentary
intention
to
deny
the
taxpayer
the
right
to
be
heard
at
this
stage,
is
the
statement
in
s.
231(4)
that
the
judge
is
empowered
to
give
approval
on
an
ex
parte
application”.
A
fortiorari,
under
the
new
legislation
where
the
Minister
is
no
longer
“authorizing”
an
officer
to
proceed.
Moreover,
the
discretionary
remedy
of
certiorari
and
prohibition
ought
not
to
issue
where
the
enabling
legislation
provides
an
appropriate
remedy
for
challenging
the
decision
under
attack.
Under
section
231.3
a
judge,
through
proper
judicial
process,
makes
a
decision
to
issue
or
not
to
issue
a
warrant,
which
decision
is
subject
to
review.
The
provision
provides
that
the
proceedings
are
ex
parte
but
in
the
case
at
bar,
as
mentioned
previously,
the
applicants
have
been
given
notice
and
will
be
afforded
the
opportunity
to
present
to
the
judge
all
the
arguments
advanced
at
the
instant
hearing
before
me.
As
mentioned
by
the
Federal
Court
of
Appeal
in
Canada
Employment
et
al.
v.
Dale
Lewis,
[1986]
1
F.C.
70
at
79:
"the
imposition
by
the
courts
of
a
duty
to
act
fairly
in
the
carrying
out
of
certain
administrative
functions
was
aimed
..
.
at
filling
a
gap”.
In
that
case,
as
well
as
in
the
instant
case,
"there
is
no
gap
to
be
filled
here".
Furthermore,
it
is
not
for
the
court
to
decide
whether
or
not
the
Minister
should
apply
for
a
search
warrant.
That
precursory
administrative
decision
is
for
the
Minister
to
make.
The
courts
ought
to
be
extremely
circumspect
in
interfering
with
steps
taken
by
law
enforcement
officials
at
the
early
stages
of
the
investigatory
process
in
the
enforcement
of
the
criminal
law
(see
Commissioner
of
Police
of
the
Metropolis,
Ex
parte
Blackburn,
[1968]
2
Q.B.
118
(C.A.),
where
Lord
Denning,
M.R.,
said
as
follows
(at
page
136):
Although
the
chief
officers
of
police
are
answerable
to
the
law,
there
are
many
fields
in
which
they
have
a
discretion
with
which
the
law
will
not
interfere.
For
instance,
it
is
for
the
Commissioner
of
Police
of
the
Metropolis,
or
the
chief
constable,
as
the
case
may
be,
to
decide
in
any
particular
case
whether
inquiries
should
be
pursued,
or
whether
an
arrest
should
be
made,
or
a
prosecution
brought.
It
must
be
for
him
to
decide
on
the
disposition
of
his
force
and
the
concentration
of
his
resources
on
any
particular
crime
or
area.
No
court
can
or
should
give
him
direction
on
such
a
matter.
The
applicants
rely
on
a
1986
Quebec
Superior
Court
decision,
The
Queen
v.
Precision
Mechanics
Ltd.
et
al.,
[1986]
2
C.T.C.
240;
86
D.T.C.
6445.
The
Federal
Court
of
Appeal
held
that
the
former
subsection
231(4)
was
unconstitutional
and
ordered
that
the
seized
documents
be
returned
to
the
taxpayers.
The
Minister
complied
and
then
applied
to
the
Quebec
Superior
Court
for
a
warrant
pursuant
to
the
new
search
and
seizure
provisions
of
the
Act.
The
Crown's
application
was
dismissed.
The
Court
found
that
the
information
used
to
apply
for
the
warrant
was
inadmissible
under
subsection
24(2)
of
the
Canadian
Charter
of
Rights
and
Freedoms
because
the
Minister
had
admittedly
used
knowledge
gained
from
the
examination
of
the
documents
seized
in
the
first
seizure
in
the
preparation
of
the
information
for
the
second
seizure.
Phelan,
J.
of
the
Superior
Court
held
that
such
information
was
tainted
and
therefore
brought
the
administration
of
justice
into
disrepute.
In
the
case
at
bar,
the
applicants
allege
that
the
information
for
the
second
seizure
is
also
tainted
by
knowledge
acquired
from
the
first
seizure.
That
might
very
well
be,
but
it
will
be
for
the
judge
hearing
the
application
under
section
231.3
to
decide.
Phelan,
J.
was
such
a
judge
in
the
Precision
Mechanics
Ltd.
decision,
supra.
It
would
be
premature
for
me
to
render
such
a
judgment
on
a
preliminary
certiorari
motion.
Another
argument
pressed
by
the
applicants
is
that
the
facts
giving
rise
to
the
charges
laid
against
the
applicants
commenced
on
December
18,
1980
whereas
the
Minister
has
decided
to
seek
documents
predating
that
period.
Also
that
some
of
the
documents
to
be
seized
are
related
to
Diane
Clayton,
the
wife
of
Frederick
K.
Clayton.
And
the
applicants
argue
that
the
application
is
based
on
evidence
obtained
as
a
result
of
an
illegal
and
unlawful
surveillance
of
the
applicants.
Those
are
all
arguments
that
they
will
want
to
make
before
the
section
231.3
judge.
The
applicants
also
challenge
the
constitutional
validity
of
section
231.3.
In
Solvent
Petroleum
Extraction
Inc.
et
al.
v.
M.N.R.,
[1988]
1
C.T.C.
325;
88
D.T.C.
6224,
I
found
the
new
provision
to
be
constitutionally
valid
as,
in
my
view,
the
amended
provision
affords
sufficient
safeguards
to
make
the
search
and
seizure
procedures
acceptable
and
within
the
reasonable
limits
prescribed
by
law
under
section
1
of
the
Charter.
Previously,
I
had
found
the
former
provision
to
be
ultra
vires
the
Charter
in
Kruger
et
al.
v.
M.N.R.
et
al.,
[1984]
1
F.C.
120;
[1983]
C.T.C.
319.
That
decision
was
confirmed
by
the
Federal
Court
of
Appeal
.
The
applicants
claim
that
this
particular
attack
on
the
constitutionality
of
section
231.3
has
not
yet
been
considered
by
the
courts.
In
order
to
properly
understand
the
applicants’
arguments
subsection
231.3(1)
to
(4)
are
reproduced
in
toto:
Sec.
231.3.
Search
Warrant.
(1)
A
judge
may,
on
ex
parte
application
by
the
Minister,
issue
a
warrant
in
writing
authorizing
any
person
named
therein
to
enter
and
search
any
building,
receptacle
or
place
for
any
document
or
thing
that
may
afford
evidence
as
to
the
commission
of
an
offence
under
this
Act
and
to
seize
and,
as
soon
as
practicable,
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
Sec.
231.3(2)
(2)
Evidence
in
support
of
application.
An
application
under
subsection
(1)
shall
be
supported
by
information
on
oath
establishing
the
facts
on
which
the
application
is
based.
Sec.
231.3(3)
(3)
Evidence.
A
judge
shall
issue
the
warrant
referred
to
in
subsection
(1)
where
he
is
satisfied
that
there
are
reasonable
grounds
to
believe
that
(a)
an
offence
under
this
Act
has
been
committed;
(b)
a
document
or
thing
that
may
afford
evidence
of
the
commission
of
the
offence
is
likely
to
be
found;
and
(c)
the
building,
receptacle
or
place
specified
in
the
application
is
likely
to
contain
such
a
document
or
thing.
Sec.
231.3(4)
(4)
Contents
of
warrant.
A
warrant
issued
under
subsection
(1)
shall
refer
to
the
offence
for
which
it
is
issued,
identify
the
building,
receptacle
or
place
to
be
searched
and
the
person
alleged
to
have
committed
the
offence
and
it
shall
be
reasonably
specific
as
to
any
document
or
thing
to
be
searched
for
and
seized.
If
I
understand
it
properly,
the
applicants’
argument
goes
as
follows.
Subsection
(4)
requires
that
a
warrant
specify
the
offence
for
which
it
is
issued.
As
provided
in
subsection
(2),
the
only
evidence
that
may
be
received
in
support
of
an
application
is
information
establishing
the
facts
on
which
the
application
is
based.
It
follows
that
such
information
must
specify
the
particular
offence.
However,
under
subsection
(3)
the
issuing
judge
is
not
confined
to
being
satisfied
that
the
offence
being
investigated
has
been
committed.
It
is
open
to
him
to
be
satisfied
that
an
offence
(i.e.
any
other
offence)
has
been
committed.
The
applicants
submit
that
there
must
be
a
nexus
between
the
offence
in
the
application
and
the
offence
in
the
warrant:
because
the
wording
of
these
subsections
read
together
could
expressly
authorize
the
seizure
of
documents
related
to
offences
other
than
the
offence
alleged
to
have
been
committed,
the
provision
is
unreasonable.
Again,
I
feel
this
argument
ought
to
be
put
to
the
issuing
judge
along
with
the
other
arguments,
since
he
has
been
afforded
the
opportunity
to
do
so.
However,
in
case
I
am
empowered
to
hear
this
particular
constitutional
argument
at
this
preliminary
stage
and
so
as
to
avoid
a
proliferation
of
proceedings,
I
will
rule
on
it.
Subsection
(3)
requires
that
the
issuing
judge
be
satisfied
that
an
offence
under
this
Act
has
been
committed.
Subsection
(2)
prescribes
that
the
application
be
supported
by
information
establishing
the
facts
on
which
it
is
based.
In
practice,
the
informant
sets
out
his
belief
as
to
what
offences
appear
to
have
been
committed
but
it
is
the
judge,
not
the
informant,
who
must
be
satisfied
that
there
are
reasonable
grounds
to
believe
that
a
particular
offence
has
been
committed.
And
the
judge
is
required
to
specify
the
offence
or
offences
to
which
the
warrant
relates
in
the
warrant
itself.
It
is
therefore
a
constitutional
prerequisite
that
the
issuing
judge
make
his
own
independent
assessment
of
the
facts
placed
before
him
and
draw
his
own
conclusions
from
those
facts.
Surely,
that
procedure
lies
within
the
reasonable
limit
prescribed
by
the
Charter.
I
do
not
wish
to
repeat
my
ratio
decidendi
in
the
Solvent
Petroleum
case,
supra,
but
I
see
nothing
offensive
or
otherwise
unconstitutional
in
the
new
section
231.3.
Consequently,
the
applicants'
motion
is
dismissed
with
costs.
Motion
dismissed.
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