Meredith,
J.:—The
petitioner
seeks
an
order
to
quash
a
search
warrant
and
for
the
return
of
documents
seized
thereunder.
The
warrant
was
issued
and
the
documents
seized
upon
information
that
the
search
would
provide
evidence
that
a
person
attempted
to
commit
the
offence
of
obstruction
of
justice
through
falsely
stating
the
income
of
a
company.
I
conclude
that
the
Justice
of
the
Peace,
in
issuing
the
search
warrant,
violated
the
express
provisions
of
the
Income
Tax
Act
and
thus
was
without
jurisdiction.
Thus
the
warrant
must
be
quashed
and
the
documents
returned.
The
Income
Tax
Act,
section
241
contains
the
following
prohibition:
241.
(1)
Except
as
authorized
by
this
section,
no
official
or
authorized
person
shall
(a)
knowingly
communicate
or
knowingly
allow
to
be
communicated
to
any
person
any
information
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
act
.
.
.
,
(b)
knowingly
allow
any
person
to
inspect
or
to
have
access
to
any
book,
record,
writing,
return
or
other
document
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act
.
.
.
.
Thus
an
“official”
or
an
“authorized
person"
cannot
knowingly
allow
the
person
named
in
the
search
warrant
to
have
access
to
the
books,
records,
writings,
or
other
documents
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
the
Income
Tax
Act.
Subsection
241(3)
provides
for
one
important
exception
to
the
restriction
to
communication,
inspection,
and
access
as
follows:
(3)
Subsections
(1)
.
.
.
do
not
apply
in
respect
of
criminal
proceedings,
either
by
indictment
or
on
summary
conviction,
that
have
been
commenced
by
the
laying
of
an
information,
under
an
act
of
the
Parliament
of
Canada,.
.
..
Thus
a
person
in
the
Department
may
be
justified
in
turning
over
documents
pursuant
to
a
search
warrant
after
a
criminal
charge
has
been
laid
but
not
before.
No
charge
had
been
laid
in
this
case.
The
first
point
taken
by
the
respondents
is
that
subsection
241(3)
is
merely
a
prohibition
directed
to
employees
of
the
Department,
not
to
others
who
may
by
some
means
become
privy
to
the
material
in
the
hands
of
the
Department.
But
others
could
only
legally
have
access
to
the
material
with
the
help
of
a
person
in
the
Department.
No
doubt
personnel
in
the
Department,
although
conditionally,
assisted
the
police
in
this
case.
But
Parliament
has
decreed
that
in
the
public
interest
the
material
be
held
confidential.
It
seems
to
me
it
would
be
difficult
to
devise
language
better
suited
to
the
purpose.
The
respondents
also
contend,
I
think,
that
the
documents
are
before
the
Court,
and
that
the
Court
should
decide
under
section
36.1
of
the
Canada
Evidence
Act
the
question
whether
the
public
interest
would
best
be
served
by
disclosure.
It
is
true
that
in
Attorney
General
for
Canada
v.
Belanger,
cited
for
the
respondents,
(I
do
not
have
the
citation)
Rothman,
J.A.
of
the
Court
of
Appeal
of
Quebec
said
that
the
Canada
Evidence
Act,
section
36.1
sets
out
"the
present
law
and
procedure
applicable
where
a
Minister
of
the
Crown
in
the
right
of
Canada,
or
other
interested
person,
wishes
to
object
to
the
disclosure
of
privileged
information
before
a
Court".
Shortly
thereafter
he
said:
“In
these
provisions,
I
believe
that
Parliament
has
abandoned
any
claim
to
absolute
privilege
on
the
part
of
the
Crown
in
the
right
of
Canada,.
.
.".
As
to
the
first
statement.
The
Crown
in
this
case
not
only
wishes
but
is
required
by
Parliament
to
take
the
position
it
does.
In
any
case,
it
is
highly
doubtful
that
the
information
is
before
this
Court.
The
second
statement
is
obiter.
I
do
not
fully
understand
the
reasoning
for
the
conclusion,
or
for
that
matter
its
meaning.
In
any
case,
surely
the
section
of
the
Canada
Evidence
Act
in
question
cannot
be
taken
to
nullify
the
clear
provisions
of
the
Income
Tax
Act.
The
orders
will
go.
Order
accordingly.
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