Thomas A. Corr Et Al. v. Her Majesty the Queen in Right of Canada Et Al., [1988] 1 CTC 409

Steele J. [Orally]:—This is an application to cross-examine the informant Vettese on his information used to obtain a search warrant under the Income Tax Act. In an earlier appplication I granted such relief based on the Rules of Practice. In Re Corr v. The Queen (1987), 60 O.R. (2d) 289, [1987] 2 C.T.C. 104, the Court of Appeal reversed that decision.

The applicant now applies for the same relief based on the inherent jurisdiction of the court. Where there are statutory provisions that do not authorize cross-examination on material, the court's inherent jurisdiction to permit it should be exercised sparingly.

The test in this case is that it should be allowed only if the applicant can make out a prima facie case of deliberate falsehood or omission or reckless disregard of truth by the informant. Making out a prima facie case that there may be some factual errors or omissions in the information is not sufficient. After reviewing the material I am not satisfied that the test has been met.

This is a very complex investigation relating to scientific technical research tax matters and involving government grants thereto. It is not a clear-cut simple criminal case of searching for a weapon or prohibited substance. There is evidence adduced by the applicant that in depositions made under oath in an American wrongful dismissal proceeding concerning some of the applicant companies, that some deponents have said things contrary to what is deposed by the informant. However, they must be read in their context. It would appear that many of the questions placed to the deponents were made with these present proceedings in mind. However, it is not clear that the deponents, in answering the questions, were applying their minds to these proceedings. In one glaring example Mr. Sexton said that he had not given documents to anyone except his attorneys. This would appear to be in contradiction to what the informant said. However, when the specific question was put to him regarding statements to Revenue Canada, (I refer to pages 744 and 745 of the transcript), his counsel refused to allow him to answer questions relating to any documents that may have been turned over to Revenue Canada or any statements made to them.

Apart from its own internal enquiry the informant relied to a large extent on a hard copy of computer tapes delivered to him by Mr. Hibbs. It may be that these tapes were improperly obtained. It may be that the informant should have been suspicious as to how they were obtained. However, the failure to disclose such suspicion in his information does not lead to even a prima facie case of deliberate falsehood or omission or reckless disregard of the truth. Even if reference to such suspicion was disclosed in the information, I believe that the warrant would still have been issued because there was ample other material to support it.

The informant is performing an investigatory procedure. Neither he nor the judge issuing the warrant are determining the admissibility of evidence for the trial. There is no obligation on the informant to put in his information every detail of his knowledge. This would be impracticable. Counsel for the applicant has clinically analysed the information with a highly technical approach based primarily on hindsight arising from depositions taken after the information was sworn. He also relies on the applicants’ own deposition that in part contradicts the information. However, the informant believed that the applicant had supplied false information to him in at least one regard and there was no obligation upon him to set out the applicant's position in the information.

The applicant submitted that if individually the contradictions and omissions were not sufficient, that cumulatively they are. I have considered the matter in this light as well.

In my opinion, the applicant has not made out a prima facie case that the informant made a deliberate falsehood or omission or so recklessly disregarded the truth that it approached fraudulent behaviour. There is no affidavit by the applicant alleging fraud on the part of the informant. Even his notice of application does not go that far. It merely refers to the fact that the information contained omissions, misrepresentations of such significance that the judge, upon being apprised of such misrepresentations and omis- sions would not have been satisfied that the information disclosed reasonable grounds of belief.

The applicant also asks permission to cross-examine based on the alleged excesses or overreaching in the execution of the warrant. I reject this. If the search warrant is valid it cannot be set aside because of the manner of its execution. It may be that the trial judge will rule evidence that was obtained as a result of the search warrant inadmissible because of the method in which it was obtained, but this has no effect on the warrant itself. This being the case there is no basis for permitting cross-examination relating to the issuance of the warrant.

The applicant alleges that persons in the informant's office had prior knowledge of an additional property that was searched and was not included in the information or the warrants. The applicant's affidavit does not state that the informant had such prior knowledge at the time of swearing the information, but only that some time during the search of the premises covered by the warrants that Revenue Canada representatives advised him that they knew of the additional premises. This is not sufficient to raise even a prima facie case under the test above referred to.

It is for these reasons that the application is dismissed.

Application dismissed.