Oscar Kruger and Oscar H. Kruger Professional Corporation v. Rick Kubica, Henry S. Lee and Minister of National Revenue and Attorney General of Canada, [1989] 1 CTC 331

Cooke, J.:—The respondents apply to strike out the plaintiff's statement of claim under Rule 27 on the ground that this Court has no jurisdiction to hear the action and that exclusive jurisdiction resides within the Federal Court of Canada pursuant to section 18 of the Federal Court Act.

The respondents apply, in the alternative, to strike out the statement of claim pursuant to Rule 129 (1)(a) as disclosing no cause of action.

The first ground raises the more important issue and will be dealt with initially.

The plaintiff practices law in the City of Edmonton and the respondents Kubica and Lee are employees of the Department of National Revenue.

While carrying out an audit directed toward the tax liability of the plaintiff, Kubica and Lee, acting pursuant to powers claimed to vest in the Minister of National Revenue by virtue of sections 231.1 and 231.2 of the Income Tax Act, sought inspection and production respectively of the plaintiff's accounting records.

The plaintiff refused in a manner which, I find, rendered him liable to prosecution under section 238 of the Income Tax Act.

The plaintiff seeks declarations that the Minister of National Revenue cannot require inspection or demand production of lawyers' trust accounts for the following reasons:

(a) The sections do not authorize such inspection or production;

(b) In the alternative, the judicial authorization for seizure of documents contemplated by the Income Tax Act is a prerequisite and was not obtained;

(c) In the further alternative the records are protected by solicitor-client privilege;

(d) If section 231.2 does require compulsory production then it constitutes an unreasonable search of seizure contrary to section 8 of the Canadian Charter of Rights.

The plaintiff also seeks injunctive relief restraining conduct which may contravene the provision of the declaratory judgment.

Sections 231.1 and 231.2 are set forth:

231.1 (1) An authorized person may, at all reasonable times, for any purpose related to the administration or enforcement of this Act,

(a) Inspect, audit or examine the books and records of a taxpayer and any document of the taxpayer or of any other person that relates or may relate to the information that is or should be in the books or records of the taxpayer or to any amount payable by him under this Act, and

(b) examine property in an inventory of a taxpayer and any property or process of, or matter relating to, the taxpayer or any other person, an examination of which may assist the authorized person in determining the accuracy of the inventory of the taxpayer or in ascertaining the information that is or should be in the books or records of the taxpayer or any amount payable by him under this Act, and for those purposes the authorized person may

(c) subject to subsection (2), enter into any premises or place where any business is carried on, any property is kept, anything is done in connection with any business or any books or records are or should be kept; and

(d) require the owner or manager of the property or business and any other person on the premises or place to give him all reasonable assistance and to answer all proper questions relating to the administration or enforcement of this Act and, for that purpose, require the owner or manager to attend at the premises or place with him.

231.2 (1) Notwithstanding any other provisions of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act, by notice served personally or by registered or certified mail, require that any person provide, within such reasonable time as is stipulated in the notice,

(a) any information or additional information, including a return of income or a supplementary return; or

(b) any document.

The respondent contends that the jurisdiction of the Court of Queen's Bench is limited to determining the vires of a statute of the Parliament of Canada in the traditional sense of the division of legislative power in a federal system, and specifically does not extend to determining whether the statute or any activity conducted thereunder is inconsistent with the rights guaranteed in the Charter.

The following provisions of the Federal Court Act are relevant:

2. In this Act

“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of The British North America Act, 1867

“Relief” includes every species of relief whether by way of damages, payment of money, injunction, declaration, restitution of an incorporeal right, return of land or chattels or otherwise.

17. (4) The Trial Division has concurrent original jurisdiction

(a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and

(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of his duties as an officer or servant of the Crown.

18. The Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

Section 101 of the Constitution Act, 1867 gives the Federal Parliament the power to create additional courts for the better administration of the laws of Canada. That section reads:

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

In adopting section 18 of the Federal Court Act which became effective June 1, 1971, Parliament divested the superior courts of the superintending and reforming powers over federal agencies and conferred it on the Trial Division of the Federal Court. Canada Labour Relations Board et al. v. Paul L'Anglais Inc. et al., [1983] 1 S.C.R. 147; 146 D.L.R. (3) 202 at 206.

The plaintiff contends that the issue raised by the statement of claim and the remedy sought is beyond a superintending power.

Both the plaintiff and respondent refer to the case of A.G. of Canada v. Law Society of B.C., Jabour v. Law Society of B.C., [1982] 2 S.C.R. 307; 137 D.L.R. (3d) 1. In the Jabour case the B.C. Law Society sought a declaration in the B.C. Supreme Court that the Combines Investigation Act did not apply to its disciplinary proceedings against a member which arose out of its advertising prohibitions.

The plaintiff in part relies on the distinction drawn in that case between two distinct types of "relief", the first being a “claim against the Crown" and the second a "Dyson" type declaration.

At page 13 [D.L.R.] after setting forth section 18 of the Federal Court Act Estey, J. states:

These provisions of the Federal Court Act, assuming for the moment they are constitutionally valid, are applicable only if the remedies sought by the respondents fall within the definition of "relief" and if they are in essence claims “against the Crown”. The fundamental remedies sought by the respondents are the declarations relating to the federal statute, the C/A; the injunctions claimed are ancillary and predicated only on the success of the first remedy.

The appellants in the Law Society action challenged the jurisdiction of the Supreme Court of British Columbia to grant the declaratory and injunctive relief sought herein against the Attorney-General for Canada, the Restrictive Trade Practices Commission and its chairman and director on the ground that the Trial Division of the Federal Court of Canada has the exclusive jurisdiction so to do.

The declaratory action has long been known to the courts here and in the United Kingdom. In its modern form it is epitomized in the case of Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.), where the courts found the plaintiff entitled to proceed against the Crown for a declaration without proceeding by way of petition of right. Cozens-Hardy M.R., at p. 416, recognized the court's jurisdiction to receive such a case ”. . . although the immediate and sole object of the suit is to effect the rights of the Crown in favour of the plaintiff". This form of action takes on much greater significance in a federal system where it has been found to be efficient as a means of challenging the constitutionality of legislation: vide Thorson v. A.-G. Can. et al. (no. 2) (1974), 43 D.L.R. 1 at p. 18, [1975] 1 S.C.R. 138 at p. 162, 1 N.R. 225, per Laskin J. (as he then was); and Wade, Administrative Law, 4th ed. (1977), p. 500.

The definition of "relief" in s. 2 includes “a declaration” specifically. It was said in the courts below that the reference to “declaration” in s. 2 is to a remedy, collateral or ancillary to other remedies, but is not to be read as including a declaration as an independent remedy. The trial judge put it this way [92 D.L.R.

(3d) 53 at p. 59]:

The addition of “declaration” in the definition of “relief” in the Federal Court Act, which was not present in the definition of the Petition of Right Act, refers, in my opinion, to declarations associated with and incidental to the actions formally requiring a fiat and proceeding by petition of right in the Exchequer Court. In other words, it only adds a form of relief associated with and incidental to the actions formally requiring a fiat and proceedings by a petition of right in the Exchequer Court and it does not add an additional cause of action. The inclusion of “declaration” in the definition of "relief" does not extend the jurisdiction of the Federal Court beyond that possessed by the Exchequer Court.

Both courts below were of the view that the declaration in question did not come within the expression “claims against the Crown" as the term is employed in s. 17 of the Federal Court Act. The trial judge stated [at p. 61]:

Such proceedings to determine whether it is within the legislative competence of Parliament to enact a certain federal act involves not the Crown but rather Parliament. What is sought here is merely a determination of whether Parliament has exceeded the limits of its authority and this can in no sense be characterized as a case where "relief is claimed against the Crown".

This view was upheld in the Court of Appeal where Hinkson J.A. (Nemetz C.J.B.C. and MacDonald J.A. concurring) drew a distinction between relief for which a petition of right had been necessary and the "Dyson" type declaration, concluding that the provisions of the Federal Court Act referred only to the former.

Applying the distinction between the ancient procedure by petition of right for a claim against the interests of the Crown on the one hand and the “Dyson” type declaration on the other, Hinkson J.A. concluded [at p. 756]:

It is clear that the respondents are not seeking a judgment which would declare or decide that the respondents are entitled to have something done in order to give effect to their legal rights as against the Crown or that they are entitled to property or some interest therein or to the possession thereof. Rather, they are seeking declarations of the same nature as those sought in Dyson v. Attorney General.

The claims for declaration made here are unaccompanied by any claim for recovery of property or rights from the defendants in the action but are indeed the core of the action, the only goal sought by the plaintiff (respondents).

The statutory interpretation approach may prove or demonstrate more than this court in this action is required to determine. This is so because if the definition “relief” in s. 2 is read down as proposed in the courts below to exclude the so-called "Dyson" declaration, not only does this protect the Supreme Court of British Columbia from the claim of exclusivity made in ss. 17 and 18 but also throws into question the jurisdiction of the Federal Court to entertain a claim for such a declaration even on the basis of a concurrent jurisdiction. This question need not and should not be determined in this action. I therefore, with respect, conclude that the issue raised on this third question cannot be resolved on the basis proposed below, namely, by the interpretation of these provisions in the Federal Court Act.

The decision of Estey, J. not to decide the Jabour case on the basis of the definition of "relief" in section 18 as not including a "Dyson" declaration constitutes the succour sought by the respondent.

It is the ratio of the case, however, found on page 16 and following, that I believe is of greatest assistance to the plaintiff.

Estey, J. continues:

There is however, another and more fundamental aspect to this issue. The provincial superior courts have always occupied a position of prime importance in the constitutional pattern of this country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction, being organized by the provinces under s. 92(15) of the Constitution Act, 1867 and are presided over by judges appointed and paid by the federal government (ss. 96 and 100 of the Constitution Act, 1867). As was said by Pigeon J. in The Queen v. Thomas Fuller Construction Co. (1958) Ltd. et al. (1979), 106 D.L.R. (3d) 193 at pp. 205-6; [1980] 1 S.C.R. 695 at p. 713, 12 C.P.C. 248:

It must be considered that the basic principle governing the Canadian system of judicature is the jurisdiction of the Superior Courts of the Provinces in all matters federal and provincial. The federal Parliament is empowered to derogate from this principle by establishing additional Courts only for the better administration of the laws of Canada.

The Federal Court, as the successor to the Exchequer Court of Canada which was first established by Parliament in 1875, was established pursuant to the authority of s. 100 of the Constitution Act, 1867 which provides “for the establishment of any additional courts for the better administration of the laws of Canada”. The expression “laws of Canada” has been settled as meaning the laws enacted by the Parliament of Canada, at least for the purposes of this appeal: Thomas Fuller, supra, per Pigeon J. at p. 201 D.L.R., p. 707 S.C.R. It is difficult to see how an argument can be advanced that a statute adopted by Parliament for the establishment of a court for the better administration of the laws of Canada can at the same time include a provision that the provincial superior courts may no longer declare a statute enacted by Parliament to be beyond the constitutional authority of Parliament. Section 17 and 18 of the Federal Court Act must, in the view of the appellants, be so construed. In my view Parliament lacks the constitutional authority to so provide. To do so would strip the basic constitutional concepts of judicature of this country, namely, the superior courts of the provinces, of a judicial power fundamental to a federal system as described in the Constitution Act, 1867. At the same time it would leave the provincially-organized superior courts with the invidious task of execution of federal and provincial laws, to paraphrase the Valin case, supra, while being unable to discriminate between valid and invalid federal statutes so as to refuse to "execute" the invalid statutes. For this second and more fundamental reason I conclude that the British Columbia courts have the requisite jurisdiction to entertain the claims for declarations herein made. Moreover, it would amount to an attempt by Parliament to grant exclusive jurisdiction to the Federal Court to administer the "laws of Canada" while the validity of those laws remained unknown. Any jurisdiction in Parliament for the grant of exclusive jurisdiction to the Federal Court must be founded on exclusive federal powers under s. 91 of the Constitution Act, 1867. In so far as there is an alleged excess of that jurisdiction by Parliament, s. 101 of the Constitution Act, 1867 cannot be read as the constitutional justification for the exclusion from the superior courts of the jurisdiction to pronounce upon it.

In the case of Minister of Justice of Canada and Minister of Finance of Canada v. Borowski et al., [1982] 1 W.W.R. 97, 130 D.L.R. (3d) 588 the plaintiff Borowski commenced an action in the Saskatchewan Court of Queen's Bench seeking a declaration that the therapeutic abortion provisions of the Criminal Code were ultra vires as being contrary to the Canadian Bill of Rights. The respondents plead exclusive jurisdiction of the Federal Court.

The issue of jurisdiction was held to be not materially different than labour, supra.

The Saskatchewan Court of Queen's Bench decision of R.L. Crain Inc. et al. v. Couture and the Restrictive Trade Practices Commission et al. (1983), 6 D.L.R. (4th) 478; 10 C.C.C. (3d) 319 is of particular interest. In that case 15 businessmen had been ordered by the Restrictive Trade Practices Commission constituted under the Combines Investigations Act to appear before a hearing officer to give oral testimony under oath in connection with their business operations.

They sought declarations that the inquiry procedure was repugnant to the Charter and that the provision of section 45 of the Combines Act was, pursuant to section 52 of the Constitution Act, of no force and effect.

The plaintiff in this case argues that its pleadings, particularly paragraph 12, raises the same issue as in Crain, supra. That paragraph alleges that the forced production of documents pursuant to section 231.2 of the Income Tax Act is an unreasonable search or seizure and is contrary to section 8 of the Canadian Charter of Rights.

Paragraph 12 of the statement of claim is framed as an attack on the section of the Tax Act itself, as opposed to questionable conduct carried out under that section and as such engages section 52 of the Constitution Act. The plaintiff filed the requisite notices with the respective Attorneys General relating to a constitutional challenge.

The Crain case, framed as it was, raised two jurisdictional questions, page 484:

. . . whether this court is a court of competent jurisdiction to entertain an application for a declaration respecting the constitutional validity of federal legislation where the legislation is impugned as being contrary to the Charter of Rights and Freedoms and whether this court has jurisdiction to adjudicate upon a claim alleging that rights guaranteed by the Charter have been infringed by federal administrative action where that claim is unconnected with the constitutional validity of the legislation pursuant to which the administrative action was taken;

In this case no search or seizure had been effected but rather demands pursuant to those sections had been made and were refused.

If section 24(1) of the Charter is restricted in its application to rights which have been infringed and not to potential or contemplated infringements then the plaintiff's argument in this case is limited to remedy under section 52 of the Constitution Act. See R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; 18 C.C.C. (3d) 395; 60 A.R. 161 at 175.

[37] Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on the challenging party is irrelevant.

[38] Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law. The respondent did not come to court voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional.

[39] Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid.

The following extracts from the Crain decision, supra, found at pages 491-3 of the D.L.R. reports are relevant to my decision in this case

The issue of whether a statute, or portion thereof, is inconsistent with the Charter is not a constitutional question in the traditional sense. Before the enactment of the Constitution Act, 1982, which entrenched the Charter of Rights and Freedoms as part of the Constitution of Canada, constitutional issues arose only when legislation was challenged as being beyond the jurisdictional limits of Parliament or the Legislatures.

However, the enactment of the Constitution Act, 1982, has altered the role of the judiciary in Canada. The courts are now called on to review the substance of legislation to determine whether the legislation imposes unreasonable restrictions on the rights and freedoms guaranteed by the Charter.

The Charter is part of the Constitution of Canada. Section 52(1) of the Constitution Act, 1982 states that

52(1) . . . any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Thus, where legislation is challenged as being inconsistent with the rights and freedoms as guaranteed by the Charter, the constitutional validity of the legislation is at issue. Therefore, the reasoning in the labour case, supra, applies with equal force to situations, such as the present situation, in which legislation is challenged as being inconsistent with the fundamental rights and freedoms guaranteed by the Charter.

For this reason, I conclude that s. 18 of the Federal Court Act does not confer exclusive jurisdiction on the Federal Court to decide whether federal legislation is inconsistent with the rights and freedoms guaranteed by the Charter. This court has jurisdiction to make such a determination.

However, it does not follow from this conclusion that s. 24(1) applications are never within the exclusive jurisdiction of the Federal Court. The nature of the violation must be considered. If the violation is the result of actions taken by a federal board that are not expressly authorized by statute, then no issue as to the validity of legislation arises. In my opinion, s. 24(1) applications for relief in respect to actions of a federal board remain within the exclusive jurisdiction of the Federal Court.

The Supreme Court of Canada has pointed out in Howarth v. National Parole Board (1974), 18 C.C.C. (2d) 385 at p. 387, 50 D.L.R. (3d) 349 at p. 351, [1976] 1 S.C.R. 453, that supervisory jurisdiction over federal boards has been wholly transferred from the superior courts of the provinces to the Trial Division of the Federal Court by s. 18 of the Federal Court Act. The Charter has not effected a jurisdictional realignment of the courts. The fact that actions of a federal administrative body are challenged as infringing or denying fundamental rights and freedoms protected by the Charter does not change the supervisory nature of such an action. Where the validity of legislation is not brought into issue, such applications remain exclusively within the jurisdiction of the federal courts: see, for example, Re Gandam and Minister of Employment & Immigration (1982), 140 D.L.R.

In the present case the applicants seek a declaration that the proposed inquiry procedure is repugnant to the Charter.

There are two aspects to the inquiry procedure that are challenged. The first is the procedure set forth in the Act; the second is the procedure established by Mr. Couture, in his capacity as an appointee of the Restrictive Trade Practices Commission.

I would conclude that, while this court has jurisdiction to grant a declaration with respect to the inquiry procedure set forth in the Act, it does not have jurisdiction to supervise the discretionary actions of the commission or its appointee. Accordingly, I will deal only with those aspects of the present application related to the validity of the Act.

[Emphasis added.]

While the issue in the Supreme Court decision of Canada Labour Relations Board et al. v. Paul L'Anglais Inc., supra, raised a different issue the language is of assistance to my decision in this case.

In Paul L'Anglais Inc., the Canada Labour Relations Board in an application for certification by the union found that the operation of L'Anglais Inc. was a federal undertaking and that its employees performed work which fell under the jurisdiction established by the Canada Labour Code.

A motion of evocation pursuant to the Code of Civil Procedure was brought before the Quebec Superior Court arguing that there had been an excess of jurisdiction on the grounds that those employees' activities fell exclusively within the exclusive authority of the provincial legislature.

Citing Jabour, supra, Chouinard said at page 210:

With regard to s. 18, I consider that it does not apply to supersede the superintending and reforming power of the Superior Court. Like the Attorney- General of Quebec, New Brunswick and Alberta, I consider that the decision by this court on August 9, 1982, in A.-G. Can. et al. v. Law Society of British Columbia et al.; Jabour v. Law Society of British Columbia et al., 137 D.L.R. (3d) 1, 66 C.P.R.

(2d) 1, 37 B.C.L.R. 145 also cited by respondents, is conclusive.

and at 211, continuing with his review of that case,

The court concluded that Parliament does not have authority to adopt a statute for the establishment of a court of the better administration of the laws of Canada which can at the same time include a provision that the provincial superior courts may no longer declare a statute enacted by Parliament to be unconstitutional.

As was mentioned at the outset, the core of the respondents' argument is that the jurisdiction of this Court is limited to determining vires of a statute of the Parliament of Canada but does not extend to determining the consistency between that statute or any activity thereunder as against the rights guaranteed by the Charter.

The final paragraph of Chouinard, J. in L'Anglais on the matter of jurisdiction would seem to reject that argument as it relates to inconsistency with section 52 of the Constitution.

Two points were made in support of the argument that this case does not apply to the case at bar. The first was that the Law Society case concerned the constitutionality of the provision itself, and the case at bar concerns its applicability. The second argument was based on the fact that the first case involved an action for a declaratory judgment, while there was a motion for evocation in the case at bar.

In my view, neither of these points is valid.

On the first, I do not see any difference in this context between constitutionality and applicability; both relate to constitutional jurisdiction. In the first instance, a provision is ultra vires and must be set aside. In the second, a provision which is otherwise valid and applicable within the jurisdictional ambit of the Legislature which adopted it, becomes inapplicable when it trenches on the field of jurisdiction of the other legislative power, Parliament has a perfect right to enact that the superintending and reforming power over federal agencies, acting in the administration of the laws of Canada, understood in the sense defined above, will be exercised exclusively by the Federal Court, a court created for the better administration of those laws. However, it cannot confer such an exclusive power on the Federal Court when what is involved is no longer the administration of a law of Canada, but the interpretation and application of the Constitution.

[Emphasis added.]

In this case the plaintiff argues that sections of the Income Tax Act offend rights guaranteed by the Charter. No actual breach has occurred at this point and I find that the pleadings taken overall invoke a section 52 question as to whether those Tax Act provisions are inconsistent with the Constitution so as to be of no force or effect.

If the plaintiff's complaint in this case had been the manner in which Kubica or Lee had carried out or attempted to carry out a search or a seizure and the application was for a remedy under subsection 24(1) of the Charter I would have deferred to the jurisdiction of the Federal Court. I have characterized the plaintiff's claim as one engaging section 52 of the Constitution, however.

Before leaving the question of jurisdiction, I wish to address the case relied on by the respondents that of Gandam v. Minister of Employment and Immigration, Sask. Queen's Bench, [1982] 6 W.W.R. 378.

This was a certiorari application in the Saskatchewan Queen's Bench seeking to quash an order of deportation from the Department of Immigration. In holding that the provincial superior court was without jurisdiction the learned trial judge reviewed the Jabour case and cited Estey, J. at page 382:

The jurisdiction of superior courts, and indeed other courts in the provinces, to review the constitutionality of federal statutes was the subject of comment in this Court in A.G. Can. v. Canard, [1976] 1 S.C.R. 170, [1975] 3 W.W.R. 1, 52 D.L.R.

(3d) 548, 4 N.R. 91, where Beetz J. at p. 216 stated:

"Once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act [R.S.C. 1970, c. I-6] and the Federal Court Act and not by the Courts of Manitoba. It is true that the latter’s jurisdiction had not been questioned by the appellants, presumably because the action taken by the respondent challenged the constitutional validity and the operation of the Indian Act and the Manitoba Courts had jurisdiction to adjudicate upon this issue as well as upon appellants' counterclaim. The Courts of Manitoba could not on the other hand hear an appeal from the Minister’s decision or otherwise review it.”

The Canard case, supra, appears to me to be an example of the application of s. 18 when a proceeding is brought to obtain relief against "a federal board, commission or other tribunal”. The law in such case is that this court has no jurisdiction to entertain such an application. In the instant case the applicant does not ask a review of the validity of the Immigration Act, but rather to obtain relief against the deportation order issued by "a federal board”, which application must be made to the Federal Court.

and on page 383 he reviews the decision of Howarth v. Nat. Parole Bd., [1976] 1 S.C.R. 453 at 470; 140 D.L.R. (3d) 363 and in reference to section 18 of the Federal Court Act concludes that

Howarth is authority for the fact that the supervisory jurisdiction over the adjudicator who issued the deportation order after a hearing was wholly transferred to the Federal Court, and no portion thereof remains with the superior court.

In my respectful view the Gandam decision is correctly decided since a certiorari application in respect of a decision of a federally appointed administrator acting solely within federal jurisdiction is specifically included within section 18 of the Federal Court Act but as importantly, such an application is also within the meaning of the words "superintending and reforming power over federal agencies" as that term is found in the authorities on this subject.

That is the ratio of the Gandam case in my view. The respondent places considerable reliance on the final paragraphs of the Gandam decision.

WHERE CERTAIN PROVISIONS IN A STATUTE ARE INCONSISTENT WITH THE PRINCIPLES CONTAINED WITHIN THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS, Constitution Act, 1981, AND WHERE THE APPLICATION OF THOSE PROVISIONS RESULT[S] IN THE INFRINGEMENT OF CERTAIN RIGHTS GUARANTEED TO EVERYONE BY THE CHARTER, THEN THE CONSTITUTIONALITY OF THAT STATUTE IS IN ISSUE.

If this statement means, as I believe it does, that in a federal statute certain sections be “inconsistent” with or, I believe, a better phrase is “infringe upon" the Charter, a constitutional issue arises, then it is in my opinion absolutely incorrect. A section of a statute may be absolutely within the power of the Parliament of Canada, but infringes upon the Charter. However, such a situation does not bring into being a constitutional question dealing with the validity of the statutes. Section 52(1) of the Charter reads in part:

", . . any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

The question which would arise is merely as to the existence of an inconsistency between the statute and the Charter and not as to the fact as to whether such section or sections of the Act be ultra or intra vires. The Charter in such a situation provides in very plain language that a person who deems that his rights or freedoms have been infringed upon or denied "may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances” [s. 24]. I find that the court of competent jurisdiction to determine whether there has been a denial or an infringement is the Federal Court.

I do not agree with the view expressed in the passage immediately above as it relates to section 52 of the Constitution Act and, as previously stated, I do not consider it to be the ratio of the decision.

Finally, on the issue of jurisdiction, the respondent cites a series of cases of which R. v. Hufsky (1988), 84 N.R. 365(S.C.C.) at para. 23 is but one.

In Hufsky it was decided, inter alia, that the compelled production of a driver's licence and insurance card at a random roadside police stop did not constitute a search or seizure within the meaning of section 8 of the Charter. The other cases similarly deal with findings on the merits that certain demands do not constitute searches or seizures under section 8.

It is therefore argued by the respondents that this cannot be a successful section 52 application.

In addressing the question of jurisdiction the court should not be influenced by the prospects of success or otherwise on the actual merits of the case.

In view of the foregoing I find that the Court of Queen's Bench of Alberta has jurisdiction to consider whether sections 231.1 and 231.2 of the Income Tax Act of Canada are inconsistent with the rights guaranteed by the Constitution of Canada, specifically section 8 of the Charter, and are to that extent of no force and effect.

The second ground of the respondents' argument is that the statement of claim discloses no cause of action and should be struck pursuant to Rule 129(1)(a).

As I understand the argument of the respondents on this point it is that since no actual seizure or search has in fact taken place the plaintiff's action is premature. It was argued the plaintiff should await prosecution and raise the section 52 argument as a defence.

I do not accept this position. Section 238 of the Tax Act provides that failure to comply with the demands for inspection and production renders the plaintiff liable for prosecution without further notice.

The plaintiff’s refusal has now placed him at risk for such a prosecution and paragraph 6 of the plaintiff's claim alleges that the respondents Kubica and Lee have so advised the plaintiff in writing.

Bearing in mind that I have found that the plaintiff's claim is a section 52 remedy, I believe a passage in the decision of Dickson, J. [as he then was] in R. v. Big M Drug Mart, supra, is an answer to the argument that the statement of claim discloses no cause of action.

[38] Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law. The respondent did not come to court voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional.

The plaintiff is not engaged in "public interest litigation”, he has standing as one who may have breached a federal statute and has received notice in writing from servants of the Crown that he is liable to prosecution without further notice.

Finally, the respondent argues that the Attorney General for Canada is the only appropriate defendant. I accept the respondent's argument that by the Constitution Act of 1867 the executive government and authority of, and over Canada, is vested in Her Majesty the Queen and that the Attorney General is by long usage and legislative pronouncement the representative in Her Majesty’s Courts of Her Majesty in Right of Canada. I find therefore that the defendants other than the Attorney General of Canada are neither necessary or proper parties to this action.

Motion denied.