Angers,
J.A.:
—On
the
basis
of
ex
parte
applications
made
by
the
agents
of
the
Minister
of
National
Revenue,
Turnbull,
J.
of
the
Court
of
Queen's
Bench
issued
search
warrants
on
July
5,
1986
with
respect
to
the
appellant
corporation's
premises
and
the
home
and
garage
of
its
president,
the
other
appellant.
On
July
22,
1986,
Turnbull,
J.
issued
further
search
warrants
with
respect
to
the
offices
of
the
appellant
company's
auditors.
Following
the
execution
of
the
search
warrants,
an
application
was
made
by
the
appellants
to
Turnbull,
J.
for
the
following
order:
(i)
an
order
pursuant
to
subsection
231.3(7)
of
the
Income
Tax
Act
(Canada),
pursuant
to
article
24(1)
of
the
Canadian
Charter
of
Rights
and
Freedoms,
and
pursuant
to
this
Honourable
Court's
inherent
or
implied
powers
quashing
two
warrants
to
search
issued
on
July
5,
1986
and
executed
on
July
7,
1986
at
the
premises
of
the
Applicants
and
a
warrant
to
search
dated
July
22,
1986
and
exe-
cuted
on
July
23,
1986
at
the
offices
of
Thorne
Riddell,
accountants
for
the
Applicants;
(ii)
an
order
that
all
documents
and
things
seized
on
July
7,
1986
from
the
premises
of
the
Applicants
by
officers
of
the
Department
of
National
Revenue
and
a
member
of
the
Royal
Canadian
Mounted
Police
and
all
extracts
therefrom
be
returned
to
the
Applicants
from
whom
they
were
seized;
(iii)
an
order
that
all
documents
and
things
in
respect
of
the
affairs
of
the
Applicants
that
were
seized
on
July
23,
1986
from
the
offices
in
Fredericton,
New
Brunswick
of
Thorne
Riddell,
Chartered
Accountants,
by
officers
of
the
Department
of
National
Revenue
and
all
extracts
therefrom
be
returned
to
the
Applicants;
(iv)
an
order
that
all
copies,
summaries,
notes
and
outlines
of
the
documents
and
things
seized
from
the
Applicants
on
July
7,
1986
and
from
Thorne
Riddell
on
July
23,
1986,
as
aforesaid,
and
all
extracts
therefrom
be
returned
to
the
Applicants;
(v)
an
order
that
the
servants
and
agents
of
the
Respondents,
Her
Majesty
The
Queen
and
the
Minister
of
National
Revenue,
be
prohibited
from
using
the
above-
mentioned
documents
or
things
or
any
copies,
summaries,
notes
or
outlines
thereof
or
any
extracts
or
any
information
obtained
therefrom;
(vi)
an
order
that
all
copies,
summaries,
notes
and
outlines
of
the
items
seized
and
all
extracts
therefrom
that
are
not,
for
any
reason,
returned
pursuant
to
paragraph
(iv),
above,
be
destroyed;
(vii)
an
interim
order
that
until
final
disposition
of
the
present
application
or
until
otherwise
ordered,
all
documents
and
things
seized
on
July
7,
1986
from
the
premises
of
the
Applicants
by
officers
of
the
Minister
of
National
Revenue
and
a
member
of
the
Royal
Canadian
Mounted
Police,
and
all
documents
and
things
seized
on
July
23,
1986
by
officers
of
the
Minister
of
National
Revenue
from
the
offices
of
Thorne
Riddell
in
Fredericton,
together
with
all
copies,
summaries,
notes
and
outlines
thereof
in
the
possession
or
control
of
the
Minister
of
National
Revenue,
his
servants
or
agents,
shall
be
impounded
and
kept
in
boxes
in
the
custody
of
the
Director
of
the
District
Taxation
Office
of
Revenue
Canada,
Taxation
in
Saint
John,
New
Brunswick
or
of
such
other
person
as
this
Honourable
Court
may
see
fit
to
appoint
and
that
neither
the
things
seized
nor
any
information
derived
therefrom
shall
be
used
by
the
Respondent;
and
that
the
Applicants’
rights
under
subsection
231.3(8)
of
the
Income
Tax
Act
(Canada)
are
reserved:
(viii)
an
order
awarding
to
the
Applicants
their
costs
of
this
application;
and
(ix)
such
further
and
other
relief
as
this
Honourable
Court
may
deem
just.
As
a
result
of
this
application
Turnbull,
J.
on
August
22,
1986,
ordered
"that
all
the
documents
seized
in
July
be
impounded
and
kept
in
sealed
boxes
pending
resolution
of
this
matter."
In
a
decision
dated
March
3,
1987,
Turnbull,
J.
dismissed
the
application
to
quash
the
search
warrants
and
rescinded
his
order
sealing
the
documents.
He
does
not
deal
with
issues
raised
by
subsections
231.3(6),
(7)
and
(8)
of
the
Income
Tax
Act,
S.C.
1986,
c.
6,
s.
121.
It
is
that
decision
which
is
appealed.
On
March
19,
1987,
the
Court
of
Appeal
ordered
that
until
final
disposition
of
the
appeal
all
documents
seized
pursuant
to
the
search
warrants
issued
by
Turnbull,
J.
be
sealed
and
kept
in
sealed
boxes.
The
sections
under
which
the
search
warrants
were
issued
read:
231.3(1)
[Search
warrant]—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)
[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.
(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.
(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.
(5)
[Seizure
of
document]—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)
[Retention
of
things
seized]
—Subject
to
subsection
(7),
where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
shall,
unless
the
Minister
waives
retention,
order
that
it
be
retained
by
the
Minister,
who
shall
take
reasonable
care
to
ensure
that
it
is
preserved
until
the
conclusion
of
any
investigation
into
the
offence
in
relation
to
which
the
document
or
thing
was
seized
or
until
it
is
required
to
be
produced
for
the
purposes
of
a
criminal
proceeding.
(7)
[Return
of
things
seized]—Where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
may,
of
his
own
motion
or
on
summary
application
by
a
person
with
an
interest
in
the
document
or
thing
on
three
clear
days
notice
of
application
to
the
Deputy
Attorney
General
of
Canada,
order
that
the
document
or
thing
be
returned
to
the
person
from
whom
it
was
seized
or
the
person
who
is
otherwise
legally
entitled
thereto
if
the
judge
is
satisfied
that
the
document
or
thing
(a)
will
not
be
required
for
an
investigation
or
a
criminal
proceeding;
or
(b)
was
not
seized
in
accordance
with
the
warrant
or
this
section.
(8)
[Access
and
copies]—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.
231.
In
sections
231.1
to
231.5,
"judge"
means
a
judge
of
a
superior
court
having
jurisdiction
in
the
province
where
the
matter
arises
or
a
judge
of
the
Federal
Court.
At
the
hearing
of
the
appeal,
we
questioned
the
power
of
a
judge
to
review
his
issuance
of
warrants
under
those
provisions
of
the
Income
Tax
Act
as
opposed
to
a
review
of
his
order
for
the
issuance
of
search
warrants.
Turnbull,
J.
on
this
point
said:
My
jurisdiction
on
this
review
is
not
limited
as
would
an
application
be
under
section
231.3(7)
of
the
Income
Tax
Act.
There
is
inherent
jurisdiction
in
a
Judge
who
made
an
ex
parte
order
to
revoke
or
rescind
it.
(See
Comeau
and
Savoie
Construction
Limited
v.
Minister
of
National
Revenue
(1979)
26
N.B.R.
157
and
the
additional
authorities
therein
referred
to.)
In
The
Attorney
General
of
Nova
Scotia
et
al.
v.
MacIntyre,
[1982]
1
S.C.R.
175;
132
D.L.R.
(3d)
385,
Dickson,
J.
had
this
to
say
about
search
warrants
at
p.
179-80
(D.L.R.
397):
A
search
warrant
may
be
broadly
defined
as
an
order
issued
by
a
justice
under
statutory
powers,
authorizing
a
named
person
to
enter
a
specified
place
to
search
for
and
seize
specified
property
which
will
afford
evidence
of
the
actual
or
intended
commission
of
a
crime.
A
warrant
may
issue
upon
a
sworn
information
and
proof
of
reasonable
grounds
for
its
issuance.
The
property
seized
must
be
carried
before
the
justice
who
issued
the
warrant
to
be
dealt
with
by
him
according
to
law.
Search
warrants
are
part
of
the
investigative
pretrial
process
of
the
criminal
law,
often
employed
early
in
the
investigation
and
before
the
identity
of
all
of
the
suspects
is
known.
Parliament,
in
furtherance
of
the
public
interest
in
effective
investigation
and
prosecution
of
crime,
and
through
the
enactment
of
s.
443
of
the
Code,
has
legalized
what
would
otherwise
be
an
illegal
entry
of
premises
and
illegal
seizure
of
property.
The
issuance
of
a
search
warrant
is
a
judicial
act
on
the
part
of
the
justice,
usually
performed
ex
parte
and
in
camera,
by
the
very
nature
of
the
proceedings.
The
search
warrant
in
recent
years
has
become
an
increasingly
important
investigatory
aid,
as
crime
and
criminals
become
increasingly
sophisticated
and
the
incidence
of
corporate
white
collar
crime
multiplies.
The
effectiveness
of
any
search
made
pursuant
to
the
issuance
of
a
search
warrant
will
depend
much
upon
timing,
upon
the
degree
of
confidentiality
which
attends
the
issuance
of
the
warrant
and
upon
the
element
of
surprise
which
attends
the
search.
In
M.N.R.
v.
Coopers
and
Lybrand,
[1979]
1
S.C.R.
495;
[1978]
C.T.C.
829
the
court
dealt
with
the
issuance
and
review
of
an
order
for
search
warrants.
The
section
involved
was
subsection
231(4)
of
the
Income
Tax
Act,
S.C.
1970-71-72
c.
63
as
amended
which
gave
power
to
the
Minister
of
National
Revenue,
with
approval
of
a
judge,
to
authorize
in
writing
the
conduct
of
searches.
Dickson,
J.
said
at
page
507
(C.T.C.
836):
The
functions
and
powers
of
the
Minister,
and
those
of
the
judge,
are
entirely
different.
In
carrying
out
the
responsibilities
with
which
he
is
entrusted
«under
the
Income
Tax
Act,
the
Minister
discharges
duties
which
are
fundamentally
administrative.
He
is
invested
with
investigatory
powers,
including
the
right
to
audit,
to
request
information
and
production
of
documents,
and
the
right
to
authorize
the
conduct
of
an
inquiry.
Additional
to
these
rights
is
the
right
conferred
by
s.
231(4)
to
authorize
the
entry
and
search
of
buildings.
The
power
he
exercises
under
s.
231(4)
is
properly
characterized
as
investigatory,
rather
than
adjudicatory.
He
will
collect
material
and
advice
from
many
sources.
In
deciding
whether
to
exercise
the
right
last
mentioned,
he
will
be
governed
by
many
considerations,
dominant
among
which
is
the
public
interest
and
his
duty
as
an
executive
officer
of
the
government
to
administer
the
Act
to
the
best
of
his
ability.
The
decision
to
seek
authority
to
enter
and
search
will
be
guided
by
public
policy
and
expediency,
having
regard
to
all
the
circumstances.
The
powers
which
the
judge
exercises
are
judicial
when
in
review
of
ministerial
administrative
discretion.
It
would
be
unusual
to
have
available
a
review
procedure
prior
to
the
application
to
the
judge,
because,
in
the
absence
of
judge's
approval,
any
decision
on
the
part
of
the
Minister
to
authorize
seizure
of
documents
is
manifestly
without
effect.
The
judge's
approval
is
the
control
on
the
Minister's
decision,
while
any
further
recourse
to
the
courts
is
to
serve
as
a
control
on
the
judge's
decision.
This
would
appear
to
be
a
sensible
reading
of
s.
231(4).
I
am
satisfied
that
in
giving
an
authorization
under
s.
231(4)
of
the
Income
Tax
Act,
the
Minister’s
actions
are
of
an
administrative
nature,
and
that
no
obligation
rests
at
law
upon
the
Minister
to
act
on
a
judicial
or
quasi-judicial
basis.
Hence
the
ministerial
decision
falls
outside
s.
28
of
the
Federal
Court
Act
and
is
not
subject
to
review
by
that
court.
There
is
no
dispute
with
respect
to
the
powers
of
a
trial
judge
to
review
his
own
orders
provided
he
acts
within
the
proper
time
periods
and
the
rules
applicable;
but
here,
there
is
no
order
to
be
reviewed
or
appealed.
The
trial
judge
by
virtue
of
the
legislation
is
made
part
of
the
investigative
process.
He
issues
the
warrant,
he
does
not
merely
order
its
issuance.
Moreover,
he
supervises
its
execution
by
the
power
which
he
has
to
order
the
production
of
the
things
seized
and
order
their
retention
or
return.
Traditionally,
process
is
issued
by
a
person
whose
authority
and
jurisdiction
is
subject
to
judicial
review
by
a
court
of
superior
jurisdiction
in
the
province.
In
New
Brunswick,
of
course,
that
court
is
the
Court
of
Queen's
Bench.
(See
for
example
section
443
of
the
Criminal
Code
which
deals
with
search
warrants
under
the
Code.)
The
relevant
amended
Income
Tax
Act
provisions
are
clear
that
it
is
a
judge
of
the
superior
court
in
the
province
who
participates
in
the
investigatory
stage
of
the
proceedings
by
issuing
the
warrant
on
an
ex
parte
application.
Once
process
is
issued,
because
it
is
by
a
judge
of
the
superior
court,
there
is
no
jurisdictional
problem
to
be
reviewed
and
a
review
of
the
merits
of
the
application
would
defeat
the
purpose
of
the
ex
parte
application.
Finally,
there
being
no
order,
there
can
be
no
appeal.
The
whole
judicature
scheme
is
based
on
superior
court
judges
making
orders
in
various
matters,
not
issuing
process.
These
orders
are
subject
to
appeal.
I
question
the
wisdom
of
legislation
which
changes
the
scheme
and
takes
away
rights
of
review
and
of
appeal
but
I
am
not
prepared,
as
was
suggested,
to
extend
the
words
“issue
a
warrant"
to
mean
"order
the
issuance
of
a
warrant"
thus
enabling
the
ordering
judge
to
review
his
ex
parte
order
or
at
least
to
render
the
order
appealable.
In
Hunter
v.
Southam
Inc.,
[1984]
2
S.C.R.
145
at
162;
14
C.C.C.
(3d)
97
at
110
Dickson,
J.
after
reviewing
the
nature
of
search
warrants
had
this
to
say
about
the
person
authorizing
search
warrants:
For
such
an
authorization
procedure
to
be
meaningful
it
is
necessary
for
the
person
authorizing
the
search
to
be
able
to
assess
the
evidence
as
to
whether
that
standard
has
been
met,
in
an
entirely
neutral
and
impartial
manner.
At
common
law
the
power
to
issue
a
search
warrant
was
reserved
for
a
justice.
In
the
recent
English
case
of
Inland
Revenue
Commissioners
v.
Rossminster
Ltd.,
[1980]
1
All
E.R.
80,
Viscount
Dilhorne
suggested
at
p.
87
that
the
power
to
authorize
administrative
searches
and
seizures
be
given
to
"a
more
senior
judge".
While
it
may
be
wise,
in
view
of
the
sensitivity
of
the
task,
to
assign
the
decision
whether
an
authorization
should
be
issued
to
a
judicial
officer,
I
agree
with
Prowse
J.A.
that
this
is
not
a
necessary
precondition
for
safeguarding
the
right
enshrined
in
s.
8.
The
person
performing
this
function
need
not
be
a
judge,
but
he
must
at
a
minimum
be
capable
of
acting
judicially.
In
our
conventional
system
of
justice,
there
is
no
better
person
to
authorize
a
search
and
supervise
its
execution
than
a
judge
of
the
superior
court.
His
actions
are
not
subject
to
judicial
review.
In
my
opinion,
legislation
which
requires
superior
court
judges
to
perform
administrative,
investigatory
or
ministerial
acts
lack
wisdom.
For
instance,
if
Turnbull,
J.
had
refused
to
issue
the
warrants
in
this
case,
there
could
be
no
judicial
review
ordering
him
to,
nor
any
appeal.
In
their
book
Droit
Constitutionnel,
(Les
éditions
Yvon
Blais
Inc.
1982),
authors
Henri
Brun
and
Guy
Tremblay
say
at
page
518:
Certains
types
de
lois
paraissent
réquisitionner
des
services
purement
"ministériels"
de
la
part
des
tribunaux,
consistant
à
estampiller
des
décisions
du
gouvernement
et
de
l'administration.
Ainsi,
pour
obtenir
diverses
catégories
de
mandats,
l'exécutif
doit
s'adresser
aux
tribunaux,
mais
ceux-ci
n'ont
pratiquement
pas
de
jugement
à
exercer.
.
.
.
Il
reste
que
les
juges
vérifient
au
moins
si
les
conditions
d'application
de
la
loi
se
trouvent
satisfaites
.
.
.
Et
ce
faisant,
en
tant
qu'interprètes
de
la
loi,
ils
pourront
souvent
y
déceler
des
termes
leur
permettant
d'apprécier
le
cas
d'espèce
.
.
.
Bien
que
la
marge
de
manoeuvre
des
tribunaux
en
certains
cas
apparaisse
très
ténue,
il
n'en
tient
qu'à
eux
d'éviter
de
la
rétrécir
davantage.
[Emphasis
added.]
Since
I
am
of
the
opinion
that
the
trial
judge
did
not
have
any
power
to
entertain
an
application
to
quash
after
he
had
issued
the
warrants,
his
decision
not
to
quash
the
warrants,
although
arrived
at
for
different
reasons
must
stand.
I
would
therefore
dismiss
the
appeal
and
vacate
the
order
sealing
the
documents
which
were
seized
pursuant
to
the
search
warrants.
Appeal
dismissed.
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