Henry
J.
(Orally):—On
June
16,
1986,
Callaghan
A.C.J.H.C.
issued
four
warrants
to
enter
and
search
the
three
business
premises
and
the
private
dwelling
of
the
applicant
Thomas
A.
Corr
pursuant
to
s.
231.3
of
the
Income
Tax
Act.
The
warrants
were
executed
on
June
17,
and
a
large
number
of
documents
were
seized
and
taken
away
by
the
agents,
employees
and
representatives
of
the
Department
of
National
Revenue
—
Taxation
and
the
R.C.M.P.
The
information
before
the
judge
alleged
reasonable
and
probable
grounds
to
believe
that
offences
under
the
Income
Tax
Act
had
been
committed
and
that
evidence
thereof
may
be
afforded
by
documents
and
other
matter
described
in
the
premises
described
in
the
information.
The
applicants
wish
to
challenge
the
seizure
in
three
principal
ways.
(a)
That
the
provisions
of
the
Income
Tax
Act
under
which
the
warrants
were
issued,
section
231.3,
are
inconsistent
with
the
Canadian
Charter
Of
Rights
and
Freedoms
and
the
warrants
are
also
inconsistent
with
the
Canadian
Charter
Of
Rights
and
Freedoms,
in
particular
sections
7,
8
and
15.
(b)
The
searches
and
seizures
were
not
in
accordance
with
the
authority
of
the
warrants.
(c)
The
warrants
were
defective
inter
alia,
in
that
the
documents
to
be
seized
were
not
reasonably
specified
and
did
not
disclose
the
offences
with
particularity.
The
applicants
therefore
say
that
the
warrants,
searches
and
seizures
are
a
nullity.
The
substantive
motion
to
quash
the
warrants
has
already
been
set
down
to
come
before
this
court
in
November.
In
the
meantime
the
applicants
seek
an
order
impounding
the
documents
so
that
the
investigating
officers
will
not
have
access
to
them
pending
the
decision
of
the
court
on
the
foregoing
issues.
There
is
no
dispute
that
this
court
has
inherent
jurisdiction
to
make
such
an
order
and
that
this
court
has
jurisdiction
to
grant
relief
to
the
applicants
on
the
main
application
under
section
24
of
the
Charter.
There
is
also
no
dispute
that
the
main
application
is
not
frivolous.
I
need
only
say
the
predecessor
to
section
231.3
has
been
held
to
offend
against
the
Charter
by
three
appellate
courts
including
the
Ontario
Court
of
Appeal
in
The
Queen
v.
Print
Three
Inc.,
Laserdata
Technology
Inc.
and
Jacques
Benquesus,
[1985]
2
C.T.C.
48;
85
D.T.C.
5303.
The
question
now
before
the
court
is
whether
the
new
provisions
that
have
subsequently
been
enacted
overcome
the
defect.
The
issue
before
me
is
whether
I
should
exercise
the
Court's
discretion
to
make
the
order
asked.
The
matter
may,
in
practical
terms,
be
reduced
to
the
balance
of
convenience.
If
the
documents
are
not
impounded
and
sealed,
the
applicants
may
effectively
lose
their
right
to
be
protected
against
use
of
the
documents
in
the
on-going
departmental
investigation
should
it
turn
out
that
the
seizures
were
a
nullity.
That
right
is
to
the
preservation
and
protection
of
those
documents
from
use
by
the
authorities
except
in
accordance
with
law.
That
right
will
probably
become
nugatory
if
the
impounding
order
is
not
made.
The
loss
of
that
right
is
not,
in
my
opinion,
a
matter
that
can
adequately
be
compensated
in
damages.
The
right
can
be
protected
by
maintaining
the
status
quo
—
that
is,
by
denying
further
access
to
the
investigators
pending
resolution
of
the
issues
raised.
If
the
impounding
order
is
made,
the
Crown
will
suffer
delay
in
continuing
its
preparation
to
bring
charges
before
the
court.
I
am
not
satisfied
that
such
delay
is,
as
at
present
contemplated,
such
as
to
frustrate
the
course
of
prosecution
in
a
manner
detrimental
to
the
public
interest.
If
it
turns
out
to
be
so
the
matter
may
be
raised
before
the
judge
hearing
the
main
application
at
which
time
the
impounding
order
will
expire.
Mr.
Flaherty
submits
that
the
Crown
requires
access
to
the
documents
in
order
to
prepare
for
the
attack
on
the
issue
and
execution
of
the
warrants
which
will
require
reference
to
specific
documents
and
evidence
among
the
seized
materials.
That,
however,
will
require
the
applicants,
upon
whom
the
onus
lies,
to
disclose
documents
they
say
were
not
within
the
authority
of
the
warrants
or
do
not
disclose
an
offence.
The
Crown
will
then
have
disclosure
of
the
documents
relied
on
by
the
applicants
who
can
be
cross-
examined
on
affidavits
supporting
the
application.
I
have
also
considered
other
submissions
made
by
Mr.
Flaherty
but
I
find
them
of
no
substance.
I
can
find
no
serious
prejudice
to
the
Crown
so
far
as
I
can
see
in
making
the
order
asked;
if
the
order
is
not
made
the
applicants’
fundamental
rights
will
probably
be
rendered
nugatory.
Subsection
24(2)
of
the
Charter
may
overcome
that
problem
but
that
remedy
is
not
automatic.
In
all
the
circumstances
I
have
decided
to
make
the
order.
The
documents
will
be
placed
in
the
custody
of
Mr.
Eli
Drakick,
an
officer
of
the
Department
of
National
Revenue
who
is
acceptable
to
all
parties;
they
will
remain
so
pending
further
order
of
the
Court.
I
have
accordingly
endorsed
the
record
as
follows:
Order
to
issue
as
asked
in
paragraphs
1,
2
and
3
of
the
Notice
of
Motion
with
the
following
amendments:
Paragraph
2
to
provide
that
the
custodian
shall
be
Mr.
Eli
Drakik,
an
officer
of
the
Department
of
National
Revenue
—
Taxation
Paragraph
3
to
have
added
at
the
end
thereof
“In
accordance
with
s.
231.3(8)
and
s.
232
of
the
Income
Tax
Act".
Costs
of
this
motion
reserved
to
the
judge
hearing
the
application.
Order
accordingly.
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