Bouck,
J.:—When
the
principle
of
an
independent
judiciary
clashes
with
the
principle
of
the
supremacy
of
parliament,
which
branch
of
government
must
stand
aside
in
favour
of
the
other?
Here,
the
Department
of
National
Revenue
relies
upon
subsections
231.3(6)
and
(7)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am
1970-71-72,
c.
63).
Upon
the
application
of
the
Department,
those
sections
compel
a
judge
to
make
an
order
in
favour
of
the
Department
whether
the
application
has
merit
or
not.
At
issue,
is
whether
or
not
the
legislation
infringes
on
the
independence
of
the
judiciary
by
denying
a
judge
the
right
to
decide
the
motion
on
its
merits?
Facts
The
facts
are
not
complicated.
Frank
Hertel
and
Specific
Flow
Research
Ltd.
allegedly
committed
offences
against
the
Income
Tax
Act.
On
September
2,
1986,
my
colleague
Paris,
J.
signed
a
warrant
to
search
pursuant
to
section
231.3
of
the
statute.
Acting
on
the
authority
of
that
warrant,
officials
of
the
Department
of
National
Revenue
executed
the
Warrant
at
the
premises
of
Frank
Hertel,
3195
Humber
Road,
Oak
Bay,
B.C.
They
seized
various
documents
which
they
retained
in
their
possession.
In
accordance
with
subsection
23.1.3(5)
of
the
legislation,
they
prepared
a
report
with
respect
to
the
items
seized.
An
application
was
then
made
to
me
on
September
12,
1986
for
an
order
under
subsection
231.3(6)
that
the
documents
or
things
seized
be
retained
by
the
Minister
of
National
Revenue
until
the
conclusion
of
the
investigation.
At
that
time,
I
adjourned
the
matter
and
directed
that
the
Department
serve
the
corporate
accused
with
notice
of
the
hearing.
I
was
told
that
Mr.
Hertel
had
left
Canada
and
was
now
somewhere
in
South
America
so
no
order
was
made
directing
service
upon
him.
At
the
same
time,
I
asked
the
Department
to
appoint
a
lawyer
to
act
on
behalf
of
the
accused
should
they
fail
to
appear.
Because
the
point
involved
a
constitutional
issue,
a
direction
was
made
that
notice
be
given
pursuant
to
the
Constitutional
Question
Act,
R.S.B.C.
1979,
c.
63.
Upon
the
matter
returning
for
disposition
on
October
28,
1986,
no
one
appeared
for
the
accused
and
the
Department
declined
to
appoint
counsel
for
the
purpose
of
arguing
any
objection
they
might
have
had.
Nonetheless,
I
am
grateful
to
Ms.
Chaperon
for
her
diligent
research
and
her
well
reasoned
written
brief.
law
(a)
Introduction
To
get
a
more
complete
understanding
of
the
principles
involved,
I
propose
to
review
the
law
in
the
following
way:
(i)
An
analysis
of
the
legislation.
(ii)
A
review
of
the
doctrine
of
the
separation
of
powers.
(iii)
A
summary
of
Canadian
and
American
case
law
on
the
subject.
(iv)
Findings.
(i)
Analysis
of
the
Legislation
It
is
helpful
to
recite
the
complete
section
of
the
Act:
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
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.
The
subsections
in
question
are
231.3(5),
(6)
and
(7).
They
seem
to
contemplate
the
following
procedure:
(a)
a
document
or
thing
seized
pursuant
to
a
warrant,
or
a
report
in
respect
to
the
seizure,
must
be
brought
before
a
judge
as
soon
as
practicable
after
the
seizure;
such
an
application
can
be
made
ex
parte;
(b)
when
that
happens
then,
unless
the
Minister
waives
the
right
to
retention,
the
judge
shall
order
that
the
documents
or
things
brought
before
the
court
or
mentioned
in
the
report
be
retained
by
the
Minister;
(c)
thereafter,
on
notice
to
the
Deputy
Attorney
General
of
Canada,
a
judge
on
his
own
motion
may
order
the
documents
or
things
seized
be
returned
to
the
person
entitled;
(d)
alternatively,
on
notice
to
the
Deputy
Attorney
General
of
Canada,
a
person
with
an
interest
in
the
document
or
things
seized
may
ask
a
judge
to
order
the
documents
or
things
seized
be
returned.
Step
(a)
in
the
process
is
complete.
the
Minister
has
not
waived
the
right
to
retention.
I
am
now
asked
to
make
an
order
that
the
documents
or
things
seized
be
retained
by
the
Minister.
On
its
plain
reading
the
statute
gives
me
no
discretion.
In
effect,
parliament
says
I
must
give
a
judicial
stamp
of
approval
to
the
actions
of
the
Minister
whether
they
are
appropriate
or
not.
While
there
is
no
evidence
before
me
that
anything
is
amiss
in
any
way,
even
if
there
was,
the
Act
appears
to
say
it
must
be
ignored.
Parliament
compels
a
judge
to
grant
the
order
on
the
application
of
the
Minister
regardless
of
the
circumstances.
Is
this
in
keeping
with
constitutional
principle?
(ii)
Doctrine
of
the
Separation
of
Powers
Holdsworth
on
A
History
of
English
Law,
Vol.
10
page
715
recognized
the
existence
of
three
branches
of
government
within
the
unwritten
principles
of
English
Constitutional
Law.
They
are,
an
elected
Parliament,
an
executive
and
an
independent
judiciary.
He
puts
it
in
these
words:
All
through
the
eighteenth
century,
the
fact
that
the
powers
of
the
state
were
divided
between
separate
organs
of
government,
which
checked
and
balanced
one
another,
was
regarded
by
men
of
all
parties,
by
peers
as
well
as
by
commoners,
and
by
statesmen
as
well
as
by
publicists,
as
its
most
salient
characteristic.
That
this
characteristic
was
the
main
guarantee
for
the
preservation
of
a
balanced
constitution
was
the
view
of
Paley.
He
said
that
the
constitution
was
preserved,
first
by
a
balance
of
power—that
is
“that
there
is
no
power
possessed
by
one
part
of
the
Legislature,
the
abuse
or
excess
of
which
is
not
checked
by
some
antagonistic
power,
residing
in
another
part”;
and
secondly
by
a
balance
of
interest—
that
is
“that
the
respective
interests
of
the
three
estates
of
the
empire
are
so
disposed
and
adjusted,
that
whichever
of
the
three
shall
attempt
any
encroachment,
the
other
two
will
unite
in
resisting
it.”
As
to
the
authority
of
the
courts,
Holdsworth
agrees
with
Blackstone:
Blackstone,
summing
up
the
results
of
the
authorities,
with
that
mixture
of
literary
deftness
and
accuracy
which
he
shows
in
his
treatment
of
very
many
branches
of
law,
described
in
classical
form
this
characteristic
of
the
constitution.
He
regarded
the
independent
position
of
the
courts
as
the
most
essential
safeguard
of
constitutional
liberty:
In
this
distinct
and
separate
existence
of
the
judicial
power
in
a
peculiar
body
of
men,
nominated
indeed,
but
not
removable
at
pleasure,
by
the
crown,
consists
our
main
preservation
of
the
public
liberty;
which
cannot
subsist
long
in
any
state,
unless
the
administration
of
common
justice
be
in
some
degree
separated
from
both
the
legislative
and
also
from
the
executive
power.
But
as
the
learned
author
later
states,
England
is
not
the
best
example
of
the
separation
of
powers.
There
was
and
still
is
a
mixing
of
many
functions.
For
example,
the
House
of
Lords
possesses
both
legislative
and
judicial
authority.
The
Lord
Chancellor
is
a
judge,
a
member
of
the
House
of
Lords
and
a
cabinet
minister.
Of
course,
none
of
these
conventions
exist
in
Canada.
Neither
the
House
of
Commons
nor
the
Senate
have
a
judicial
function
in
the
same
way
as
the
House
of
Lords.
No
judge
in
Canada
occupies
a
seat
in
either
House
of
Parliament,
nor
is
one
a
cabinet
minister.
In
a
unified
country
such
as
the
United
Kingdom,
Parliament
has
the
power
“to
make
or
unmake
any
law
whatever":
Dicey,
The
Law
of
the
Constitution
(10th)
Ed.
1965,
p.
39.
But
in
a
federal
state
such
as
Canada,
legislative
powers
are
divided
between
the
Federal
Government
and
the
Provinces
according
to
a
written
constitution.
Where
there
is
doubt
as
to
whether
Ottawa
or
the
provinces
can
legislate
on
any
particular
matter,
the
courts
must
decide
the
issue.
In
that
sense
no
Canadian
legislature
is
supreme
in
the
same
way
as
is
the
case
in
the
United
Kingdom.
Similarly,
Canadian
judges
are
accustomed
to
being
the
ultimate
interpreters
of
many
aspects
of
the
Canadian
Constitution,
whereas
in
England,
judges
do
not
play
the
same
role.
There,
it
is
performed
by
the
United
Kingdom
Parliament.
United
Kingdom
constitutional
principles
are
relevant
in
Canada
because
of
the
preamble
to
the
Constitution
Act
1867.
It
purports
to
establish
a
system
of
government
using
the
United
Kingdom
as
a
model
for
Canada.
The
preamble
reads
in
part:
Whereas
the
Provinces
of
Canada,
Nova
Scotia
and
New
Brunswick
have
expressed
their
desire
to
be
a
federally
united
into
one
Dominion
under
the
Crown
of
the
United
Kingdom
of
Great
Britain
and
Ireland,
with
a
constitution
similar
in
principle
to
that
of
the
United
Kingdom.
.
.
.
I
attempted
to
find
English
cases
dealing
with
similar
issues
to
those
raised
in
these
proceedings.
None
came
to
light.
This
may
be
the
result
of
an
unconscious
recognition
in
Parliament
not
to
restrict
the
right
of
the
judiciary
in
its
role
as
an
adjudicator.
It
may
also
be
reinforced
by
the
presence
of
judges
in
cabinet
and
in
the
House
of
Lords.
They
may
head
off
any
legislation
framed
in
words
similar
to
those
found
in
section
231.3
of
the
Income
Tax
Act.
(iii)
Canadian
and
American
Case
Law
Several
Canadian
courts
have
struck
down
legislation
that
interferes
with
the
independence
of
the
judiciary
and
several
have
declined.
Here
is
a
brief
summary
of
the
leading
authorities
I
could
locate.
Canada—Legislation
struck
down
(a)
Rex
v.
Hess,
[1949]
1
W.W.R.
586
(B.C.C.A.).
Section
1025A
of
the
Criminal
Code
denied
bail
to
a
person
who
was
acquitted.
The
section
was
held
to
be
outside
the
competence
of
parliament
to
enact
since
it
interfered
with
the
independence
of
the
judiciary.
(b)
Greater
Victoria
School
District
#61
v.
Goudie
(1984),
59
B.C.L.R.
176
(Tyrwhitt-Drake,
C.C.J.).
Section
95
of
the
School
Act,
R.S.B.C.
1979,
c.
35
ordered
a
court
to
“dismiss
an
action”
if
it
appeared
in
an
action
against
a
school
board
that
the
Board
acted
under
the
authority
of
the
School
Act.
The
section
was
struck
down
because
it
infringed
upon
purely
judicial
authority.
Canada—Legislation
upheld
(a)
Re:
Joseph
Jacob
Holdings
Ltd.
v.
City
of
Prince
George
(1980),
118
D.L.R.
(3d)
243
(Hinds
J.,
B.S.S.C.).
On
a
appeal
from
the
decision
of
the
commissioner,
subsection
908(5)
of
the
Municipal
Act,
R.S.B.C.
1979,
c.
290
ordered
a
judge
of
the
Supreme
Court
to
give
judgment
within
six
weeks
from
the
time
of
giving
a
notice
of
appeal,
otherwise
the
decision
of
the
commissioner
stood.
The
section
was
held
not
to
interfere
with
the
independence
of
the
judiciary.
(b)
R.
v.
Shand
(1976),
35
C.R.N.S.
202;
30
C.C.C.
(2d)
23
(Ont.
C.A.).
Under
the
Narcotic
Control
Act,
R.S.C.
1970,
c.
N-1,
Parliament
established
a
minimum
sentence
of
seven
years
for
importing
restricted
drugs.
This
was
upheld
as
not
being
contrary
to
the
Canadian
Bill
of
Rights,
R.S.C.
1970
Appendix
III
s.
2(b)
as
cruel
and
unusual
punishment.
(c)
Gagnon
and
Vallieres
v.
The
Queen
(1971),
14
C.R.N.S.
321
(Que.
C.A.).
This
dispute
arose
out
of
the
F.L.Q.
crisis
in
October
1970.
The
Parliament
of
Canada
enacted
the
Public
Order
(Temporary
Measures)
Act
which
revoked
the
proclamation
of
certain
sections
of
the
War
Measures
Act,
R.S.C.
1952,
c.
288.
A
habeas
corpus
application
was
brought
by
the
appellants.
One
of
the
grounds
of
their
petition
was
that
the
statute
usurped
the
powers
of
the
judiciary.
The
court
found
that
in
its
essence
the
legislation
did
not
interfere
with
the
independence
of
the
judiciary.
(d)
Re
Attorney
General
of
Canada
and
International
Association
of
Longshoremen
Local
375
et
al.
(1975),
84
D.L.R.
(3d)
150
(Que.
S.C.).
Section
16
of
the
St.
Lawrence
Ports
Operations
Act,
1975,
1974-75-76
(Can.)
c.
39
compelled
a
court
to
make
an
order
upon
the
application
of
the
Crown.
It
was
held
that
this
section
did
not
infringe
upon
the
independence
of
the
judiciary
since
the
Crown
had
to
prove
a
number
of
conditions
before
the
order
could
be
made.
Thus,
a
residual
discretion
vested
in
the
court
as
to
whether
the
requirements
for
obtaining
the
order
were
proved.
American
Case
Law
Three
courts
which
discussed
this
subject
in
the
United
States
declared
similar
legislation
unconstitutional
since
it
infringed
upon
the
independence
of
the
judiciary.
They
are:
(a)
Broadway
v.
State,
60
S.
2d
701
(Supreme
Crt.
Alabama
1952).
An
Alabama
statute
provided
that
a
new
trial
must
be
granted
if
the
solicitor
or
other
prosecuting
attorney
made
any
comment
concerning
the
defendant's
failure
to
testify.
This
was
held
to
be
unconstitutional
since
It
was
an
infringement
by
the
legislature
upon
judicial
power
which
restricted
the
court's
right
to
exercise
its
discretion
as
to
whether
a
new
trial
should
in
fact
be
ordered
in
these
circumstances.
(b)
Colorado
v.
Leahy,
484
P.
2d
778
(Supreme
Crt.
Colorado
1970).
Colorado
legislation
stated
that
after
filing
a
certain
type
of
affidavit
a
judge
“shall
issue
a
warrant"
for
seizure
of
property.
The
section
was
declared
unconstitutional
since
it
deprived
the
court
of
a
discretion
as
to
whether
the
warrant
should
be
issued
or
not.
(c)
City
of
Birmingham
v.
48th
District
Court
Judge,
255
N.W.
2d
760
(Mich
Ct.
App.
1977).
A
Michigan
statute
or
ordinance
stated
that
certain
facts
described
in
a
complaint
“shall
be
accepted
by
the
court
as
establishing
probable
cause
for
the
issuance
of
a
warrant"
of
arrest.
In
holding
the
legislation
unconstitutional
the
Court
said
that
it
was
an
impermissible
intrusion
upon
the
judicial
function
since
it
completely
removed
from
the
judiciary
the
power
to
refuse
the
issuance
of
a
warrant
in
certain
cases.
(iv)
Findings
In
this
province,
I
am
naturally
bound
by
the
decisions
of
our
Court
of
Appeal
except
where
they
are
reversed
or
modified
by
the
Supreme
Court
of
Canada.
Therefore,
R.
v.
Hess,
supra,
establishes
the
guiding
principles
I
must
follow.
While
the
decision
of
my
colleague
Hinds,
J.
in
Re
Joseph
Jacobs
Holdings
v.
City
of
Prince
George,
supra,
is
persuasive
on
the
other
side
of
the
coin,
it
seems
that
R.
v.
Hess
was
not
referred
to
him
for
his
consideration
at
the
time
of
his
ruling.
A
good
deal
of
mischief
can
occur,
which
brings
the
administration
of
justice
into
disrepute,
where
Parliament
passes
laws
of
this
nature.
Here
are
some
other
examples:
(a)
Criminal
Code,
s.
98—Order
Prohibiting
Possession
of
Firearms,
etc.
Under
section
98
of
the
Criminal
Code,
where
a
person
is
convicted
of
an
indictable
offence
involving
violence
against
another,
and
for
which
he
may
be
sentenced
to
imprisonment
for
ten
years
or
more,
the
statute
says
a
judge
shall
in
addition
to
any
other
punishment
order
the
restricted
person
from
possessing
firearms
or
explosives
for
a
number
of
years.
This
section
covered
the
old
crime
of
rape
which
attracted
a
maximum
sentence
of
life
imprisonment.
Judges
were
supposed
to
restrict
an
accused
from
possessing
explosives
or
firearms
for
persons
convicted
of
rape.
Because
it
seemed
illogical
the
section
was
frequently
ignored.
Today
a
person
convicted
of
criminal
negligence
causing
death
in
the
operation
of
a
motor
vehicle
is
exposed
to
the
provisions
of
section
98.
Again,
section
98
appears
unconnected
to
such
a
charge.
Why
should
a
person
who
has
committed
a
crime
not
related
in
any
way
to
the
use
of
firearms
or
explosives
be
denied
the
right
to
possess
them?
Besides
that
criticism,
nothing
happens
if
the
penalty
under
section
98
is
not
imposed
at
the
time
of
the
conviction.
Frequently
Crown
Counsel
forget
to
ask
for
an
order
of
this
nature
and
it
often
slips
the
mind
of
the
trial
judge.
The
section
would
be
more
effective
if
it
came
into
operation
automatically
in
certain
circumstances
or
if
it
were
made
permissive
on
the
application
of
the
Crown.
(b)
Criminal
Code,
section
670
—
Recommendation
by
a
Jury
According
to
section
670
of
the
Criminal
Code,
a
judge
“shall"
put
to
the
jury
a
request
for
its
recommendations
as
to
sentence
following
a
verdict
of
guilty
of
second
degree
murder.
In
that
statutory
recommendation
the
judge
must
tell
the
jury
that
the
law
requires
the
accused
to
serve
ten
years
in
prison
before
he
is
eligible
to
be
considered
for
release
on
parole.
The
judge
then
asks
the
jury
if
it
wishes
to
recommend
a
period
of
more
than
ten
years
but
not
more
than
25
which
the
accused
should
serve
before
he
is
eligible
to
be
considered
for
release
on
parole.
The
recommendation
is
not
binding
on
the
sentencing
judge.
The
main
trouble
with
this
direction
is
that
under
subsection
674(2)
of
the
Criminal
Code,
a
person
convicted
of
second
degree
murder,
who
is
sentenced
to
life
imprisonment
without
eligibility
for
parole
for
ten
years,
can
in
fact
be
eligible
for
day
parole
after
serving
seven
years.
Contrary
to
popular
belief
day
parole
does
not
necessarily
mean
a
prisoner
leaves
the
prison
every
morning
and
returns
every
night.
Day
parole
is
defined
under
the
Parole
Act,
R.S.C.
1970,
c.
P-2,
s.
2
as
follows:
“day
parole”
means
parole
the
terms
and
conditions
of
which
require
the
inmate
to
whom
it
is
granted
to
return
to
prison
from
time
to
time
during
the
duration
of
such
parole
or
to
return
to
prison
after
a
specified
period;
What
this
means
in
practice
is
uncertain
but
it
can
literally
mean
release
after
seven
years
and
return
at
the
end
of
ten
years
at
which
time
full
parole
automatically
commences.
Consequently,
the
section
demands
a
judge
give
the
jury
an
instruction
that
is
not
altogether
true.
Jurors
may
in
fact
see
the
prisoner
on
the
streets
of
the
city
where
they
live
some
seven
years
after
his
conviction.
Remembering
what
they
were
told
by
the
court
at
the
time
of
sentencing
it
might
cause
them
to
wonder
about
the
credibility
of
the
courts
and
the
enforcement
of
the
criminal
law.
These
are
a
few
instances
where
the
mandatory
direction
of
Parliament
is
unsatisfactory.
Not
only
does
it
lower
the
esteem
which
the
public
should
have
for
the
judicial
process
but
it
also
interferes
with
the
independence
of
the
judiciary.
What
then
should
be
said
about
subsections
231.3(6)
and
(7)
of
the
Income
Tax
Act?
There
is
an
argument
that
the
section
is
not
objectionable
because
it
allows
the
judge
on
his
own
motion
to
set
aside
any
order
once
made.
That
again
just
seems
to
make
the
point.
Common
law
judges
are
not
investigating
magistrates.
They
are
appointed
to
hear
applications
brought
by
litigants
and
to
resolve
their
disputes.
It
is
a
complete
misconception
of
the
common
law
judicial
process
to
think
that
a
judge
comes
to
work
each
day
looking
for
income
tax
files
to
examine
so
that
he
may
set
aside
orders
he
previously
made.
Hence,
these
provisions
of
the
Income
Tax
Act
are
tainted
with
Parliament’s
misunderstanding
of
how
a
judge
functions
in
a
common
law
environment.
This
reinforces
the
idea
that
section
231.3
was
not
properly
considered
at
the
time
of
its
enactment.
Despite
the
inadequacies
of
the
section,
it
seems
to
me
there
is
still
a
middle
road
that
can
be
followed.
That
path
was
found
by
Osler,
J.
in
R.
v.
Zaharia
and
Church
of
Scientology
of
Toronto
(1985),
21
C.C.C.
(3d)
118.
He
was
examining
subsection
446(1)
of
the
Criminal
Code.
It
contains
similar
provision
to
those
found
in
the
Income
Tax
Act,
where
it
states
a
justice
"shall"
order
that
things
seized
under
a
search
warrant
be
detained.
The
section
reads:
446.
(1)
Subject
to
this
or
any
other
Act
of
Parliament,
where,
pursuant
to
paragraph
445.1(1)(b)
or
subsection
445.2(2),
anything
that
has
been
seized
is
brought
before
a
justice
or
a
report
in
respect
of
anything
seized
is
made
to
a
justice,
he
shall,
(a)
where
the
lawful
owner
or
person
who
is
lawfully
entitled
to
possession
of
the
thing
seized
is
known,
order
it
to
be
returned
to
him,
unless
the
prosecutor
satisfies
the
justice
that
the
detention
of
the
thing
seized
is
required
for
the
purposes
of
any
investigation
or
a
preliminary
inquiry,
trial
or
other
proceeding;
or
(b)
where
the
prosecutor
satisfies
the
justice
that
the
thing
seized
should
be
detained
for
a
reason
set
out
in
paragraph
(a),
detain
the
thing
seized
or
order
that
it
be
detained,
taking
reasonable
care
to
ensure
that
it
is
preserved
until
the
conclusion
of
any
investigation
or
until
it
is
required
to
be
produced
for
the
purposes
of
a
preliminary
inquiry,
trial
or
other
proceeding.
[Emphasis
mine.]
It
is
clear
the
Criminal
Code
leaves
a
discretion
with
the
justice
which
is
not
given
to
a
judge
under
section
236
of
the
Income
Tax
Act.
For
example,
under
paragraph
446(1)(a)
of
the
Criminal
Code,
the
justice
may
order
the
things
returned
to
the
person
from
whom
they
were
seized
unless
the
prosecution
satisfies
the
justice
that
the
detention
of
the
things
seized
is
required
for
the
purpose
of
any
investigation
or
a
preliminary
enquiry,
trial
or
other
proceeding.
No
such
discretion
is
given
a
judge
under
the
Income
Tax
Act.
When
analyzing
subsection
446(1)
of
the
Criminal
Code,
Osler,
J.
said
at
125:
Similarly,
it
was
submitted
that
the
use
of
the
word
“shall”
in
s.
446(1)
was
an
unwarranted
fettering
of
the
discretion
of
the
officer
who
is
to
act
judicially.
In
my
view,
the
word
should
be
construed
as
permissive
rather
than
mandatory,
and
the
section
can
stand.
In
a
like
way,
I
propose
to
hold
that
Parliament
really
meant
to
say
“may”
instead
of
“shall”
in
subsection
231.3(6)
of
the
Income
Tax
Act.
Such
an
interpretation
leaves
a
discretion
in
the
court
as
to
whether
items
seized
can
be
retained
by
the
Income
Tax
Department
when
it
applies
for
an
order
under
subsection
231.3(6).
Judgment
Given
the
circumstances
before
me,
I
can
see
no
reason
to
refuse
the
application
and
the
order
is
accordingly
made.
Application
granted.
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