Hartt,
J:—This
is
an
application
by
the
defence
under
subsection
24(2)
of
the
Canadian
Charter
of
Rights
and
Freedoms
for
an
order
excluding
the
introduction
into
evidence
in
these
proceedings
of
any
materials
seized
during
the
course
of
two
search
and
seizure
actions
carried
out
by
officers
of
the
Department
of
National
Revenue
on
May
13,
1975
and
March
1,
1977.
In
the
alternative,
the
defendants
apply
under
subsection
24(1),
(or
if
necessary,
under
the
common
law)
for
an
order
directing
the
return
to
the
defendants
of
all
the
materials
so
seized
together
with
all
copies
thereof
and
any
notes
précis
or
other
description
of
the
material
taken
or
seized.
The
documents
in
issue
were
seized
prior
to
the
enactment
of
the
Charter
pursuant
to
authorizations
under
subsection
231(4)
of
Income
Tax
Act
SC
1970-71-72
c
63.
It
is
common
ground
that
in
light
of
MNR
et
al
v
Kruger
Inc
et
al,
[1984]
CTC
506;
84
DTC
6478,
subsection
231(4)
of
the
Income
Tax
Act
is
inconsistent
with
the
right
to
be
secure
from
unreasonable
search
and
seizure
guaranteed
by
section
8
of
the
Charter
and
is
no
longer
of
any
force
and
effect.
Although
counsel
for
the
applicants
agree
that
section
8
of
the
Charter
is
not
to
be
read
as
having
a
restrospective
application,
they
do
argue
that
on
a
liberal
and
common
sense
reading
of
the
section,
a
current
unreasonable
detention
of
documents
seized
before
the
enactment
of
the
Charter
would
fall
within
the
ambit
of
section
8.
In
addition
they
argue
that
there
existed
at
common
law
a
right
against
unlawful
search
and
seizure,
that
section
8
codified
and
enlarged
the
right
in
a
constitutional
context
and
that
section
24
provides
an
effective
remedy
for
its
breach.
They
point
to
the
significance
of
the
choice
of
the
word
“guaranteed”
in
section
24
as
indicating
an
intention
to
include
a
right
which
existed
prior
to
the
enactment
of
the
Charter.
In
essence
the
basis
of
the
application
is
that
the
two
search
and
seizure
actions
carried
out
under
the
authority
of
subsection
231(4)
of
the
Income
Tax
Act
were
for
several
reasons
unlawful
under
the
then
existing
law,
that
the
continuing
unlawful
detention
of
the
documents
post-Charter
is
an
infringement
of
a
right
guaranteed
by
section
8
of
the
Charter
and
the
remedies
envisaged
in
section
24
are
available.
In
the
alternative,
it
was
argued
that
even
if
the
searches
and
seizures
were
lawful
at
the
time,
in
view
of
the
fact
that
subsection
231(4)
has
been
found
to
conflict
with
section
8
of
the
Charter,
there
is
now
no
valid
authority
justifying
the
retention
of
the
documents,
therefore
there
is
a
current
breach
of
section
8
and
again
the
remedies
in
section
24
become
available.
Having
arrived
at
this
point
they
further
contend
that
a
series
of
pre-Charter
illegalities
that
occurred
prior,
during
and
subsequent
to
the
seizures
become
relevant
to
the
appropriate
deter-
miniation
of
whether
to
exclude
the
documents
from
evidence
under
subsection
24(2)
or
whether
to
order
their
return
under
subsection
24(1).
The
nature
of
the
application
and
the
complexity
of
the
legal
arguments
require
a
rather
detailed
account
of
the
factual
events.
Both
the
defendants
and
the
Crown
filed
a
book
of
exhibits
on
the
motion
and
both
parties
called
as
witnesses
Department
of
National
Revenue
investigators
who
participated
in
the
searches
and
seizures.
The
documents
which
are
the
subject
matter
of
this
application
may
conveniently
be
grouped
into
two
categories:
1.
The
May
13,
1975
seizure:
Documents
seized
by
the
Department
of
National
Revenue
on
May
13,
1975
pursuant
to
subsection
231(4)
of
the
income
Tax
Act,
and
2.
The
March
1,
1977
seizure:
Documents
first
seized
in
three
actions
by
the
RCMP
on
July
24,
August
27,
and
September
12,
1975
pursuant
to
the
Criminal
Code,
subsequently
seized
from
the
RCMP
by
the
Department
of
National
Revenue
on
December
23,
1976,
purportedly
pursuant
to
paragraph
231
(1
)(d)
of
the
Income
Tax
Act
(quashed
by
Mahoney,
J)
and
subsequently
re-seized
by
the
Department
of
National
Revenue
on
March
1,
1977
pursuant
to
subsection
231(4)
of
the
Income
Tax
Act.
l.
May
13,
1975
seizure
1.
The
Facts
(a)
The
Authorization
The
May
13,
1975
seizure
was
effected
under
an
authorization
pursuant
to
subsection
231(4)
of
the
income
Tax
Act.
The
authorization
is
divided
into
two
parts.
The
first
part
relates
to
the
seizure
of
documents
from
the
residence
of
Burnett
and
the
offices
of
his
companies.
The
second
part
relates
to
seizures
from
third
party
premises.
The
authorization
reads
as
follows:
IN
THE
MATTER
OF
the
Income
Tax
Act
—
and
—
IN
THE
MATTER
OF
Goden
Holdings
Limited,
Ruthbern
Holdings
Limited,
Kel-
burn
Management
Limited
and
Joseph
Burnett.
AUTHORIZATION
TO
ENTER
AND
SEARCH
The
Director,
Special
Investigations
Division,
Department
of
National
Revenue,
Taxation
hereby
authorizes
G
E
LANGLEY,
E
EC
DRAKICH,
R
F
WELTON,
J
T
MARLEY,
E
TOTH,
C-
E
C
BAKER,
B
P
BIRD,
R
G
COX,
D
A
DUNCAN,
R
A
PRINCE,
A
F
LUNGE,
R
J
MILLETT,
R
F
THOMPSON,
M
G
COELHO
and
D
J
KIMBALL,
officers
of
the
Department
of
National
Revenue,
or
any
of
them,
together
with
such
members
of
the
Royal
Canadian
Mounted
Police
or
other
peace
officers
as
they,
or
any
of
them,
may
call
on
to
assist
them,
or
any
of
them,
to
enter
and
search,
if
necessary
by
force,
the
following
premises
and
any
receptacles
or
places
therein:
(a)
The
private
residence
of
Joseph
Burnett
at
15
High
Point
Road
in
the
Municipality
of
Metropolitan
Toronto,
Ontario,
and
all
conveyances
owned
or
operated
by
him.
(b)
The
offices
of
CNA
Investors
Group
Ltd,
including
all
areas
occupied
or
used
by
Joseph
Burnett,
BA,
LLB,
Goden
Holdings
Limited,
Ruthbern
Holdings
Limited
and
Kelburn
Management
Limited,
or
any
of
them,
at
Suite
900,
65
Queen
Street
West
in
the
Municipality
of
Metropolitan
Toronto,
Ontario,
and
all
storage
facilities
owned
or
controlled
by
them
at
65
Queen
Street
West
in
the
Municipality
of
Metropolitan
Toronto,
Ontario.
(c)
All
conveyances
owned
by
Ruthbern
Holdings
Limited
including
but
not
necessarily
limited
to
the
following:
(i)
1974
Rolls
Royce
automobile
bearing
Province
of
Ontario
licence
number
JDJ
648.
(ii)
1974
Rolls
Royce
automobile
bearing
Province
of
Ontario
licence
number
CNA
900.
(iii)
1973
Cadillac
automobile
bearing
Province
of
Ontario
licence
number
DWF
656.
(iv)
1972
Mercedes
Benz
automobile
bearing
Province
of
Ontario
licence
number
BKX
797.
for
documents,
books,
records,
papers
or
things
which
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Income
Tax
Act
or
a
regulation
and
to
seize
and
take
away
any
such
documents,
books,
records,
papers
or
things
and
retain
them
until
they
are
produced
in
any
court
proceedings,
and
(d)
The
offices
of
Samuel
Gotfrid,
Barrister
&
Solicitor,
at
Suite
1900,
65
Queen
Street
West,
in
the
Municipality
of
Metropolitan
Toronto,
Ontario,
and
all
storage
facilities
owned
or
controlled
by
him
at
65
Queen
Street
West,
in
the
Municipality
of
Metropolitan
Toronto,
Ontario.
(e)
The
offices
of
Zeifman
&
Co,
Chartered
Accountant,
at
Suite
401,
3101
Bathurst
Street
in
the
Municipality
of
Metropolitan
Toronto,
Ontario,
and
all
storage
facilities
owned
or
controlled
by
them
at
3101
Bathurst
Street
in
the
Municipality
of
Metropolitan
Toronto,
Ontario.
(f)
The
offices
of
Perlmutter,
Orenstein,
Giddens,
Newman
&
Co,
Chartered
Accountants,
at
the
10th
Floor,
121
Richmond
Street
West,
in
the
Municipality
of
Metropolitan
Toronto,
Ontario,
and
all
storage
facilities
owned
or
controlled
by
them
at
121
Richmond
Street
West,
in
the
Municipality
of
Metropolitan
Toronto,
Ontario.
for
documents,
books,
records,
papers
or
things
which
may
pertain
or
relate
to
Goden
Holdings
Limited,
Ruthbern
Holdings
Limited,
Kelburn
Management
Limited
and
Joseph
Burnett,
or
which
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Income
Tax
Act
or
a
regulation
and
to
seize
and
take
away
any
such
documents,
books,
records,
papers
or
things
and
retain
them
until
they
are
produced
in
any
court
proceedings.
GIVEN
under
my
hand
at
the
City
of
Ottawa,
Province
of
Ontario,
this
8th
day
of
May,
1975.
“(Signed)”
Director
Special
Investigations
Division.
After
having
considered
the
application
made
by
the
Director
of
Special
Investigations
based
on
the
affidavits
of
Gary
Edmund
Charles
Baker
and
Manuel
Con-
calves
Coelho,
I
hereby
approve
of
the
above
authorization,
which
approval
is
also
indicated
on
the
preceding
page
by
my
initials.
|
“(Signed)”
|
DATED
AT
Toronto
|
County
Court
Judge
of
the
|
this
12th
day
of
May
1975.
|
Judicial
District
of
York
|
The
authorization
was
signed
by
the
Director,
Special
Investigations
Division,
Department
of
National
Revenue
(“DNR”),
Taxation
on
May
8,
1975.
On
May
12,
1975
the
authorization,
along
with
two
affidavits
sworn
by
Gary
Edmund
Baker
and
Manuel
Concalves
Coelho,
officers
of
DNR,
was
considered
by
MacRae,
Co
Ct
J
and
approved
on
that
date.
The
supporting
affidavits
alleged
reasonable
and
probable
grounds
referable
to
an
income
tax
violation
by
Ruthbern
Holdings
Limited
and
Joseph
Burnett
in
relation
to
the
non-disclosure
of
$20,000
of
income
from
the
Whitby
Mall
transaction
(now
item
#1
in
the
prosecution
as
outlined
in
the
Crown's
opening
statement).
The
affidavits
allege
that
an
amount
of
$20,000
was
paid
by
York
Management
and
Consultants
Limited
to
Kelburn
Management
Limited
as
a
financing
fee
in
relation
to
the
Whitby
Mall.
This
amount
was
initially
secured
in
June
1971
by
a
mortgage
to
Goden
Holdings
Limited
and
was
paid
to
Kelburn
on
May
3,
1972.
Kelburn
paid
this
amount
to
Ruthbern
which
in
turn
credited
it
to
Burnett’s
shareholder
advance
account.
Burnett
was
director
and
officer
of
Goden,
Kelburn
and
Ruthbern
and
active
in
their
day-to-day
operations.
Burnett
allegedly
advised
Coehlo
that
the
$20,000
was
income
of
Gotfrid
and
Burnett,
a
law
firm
of
which
Burnett
was
a
partner
in
1969,
1970
and
1971.
He
produced
summary
income
sheets
of
the
partnership
showing
a
receipt
of
$20,000
from
York
Management
(Whitby)
and
a
receipt
of
$6,825
from
Revenue
Properties,
a
client
of
the
law
firm.
Entries
in
the
client
ledger
and
the
record
of
cheques
and
receipts
of
the
law
firm
allegedly
showed
no
receipt
from
York
Management
but
instead
showed
the
full
amount
of
$26,825.05
a
receipt
from
Revenue
Properties.
The
affidavits
alleged
that
Burnett
caused
the
false
summary
sheet
to
be
prepared
and
failed
to
include
the
financing
fee
of
$20,000
in
the
return
of
Ruthbern
or
Burnett.
The
affidavits
further
alleged
that
Zeifman
and
Co,
Chartered
Accountants,
performed
accounting
services
for
Goden
Holdings
Limited,
Ruth-
bern
Holdings
Limited,
Kelburn
Management
Limited,
Gotfrid
and
Burnett,
Barristers
and
Solicitors,
and
Joseph
Burnett.
The
firm
of
Perlmutter,
Orenstein,
Giddens,
Newman
and
Co,
Chartered
Accountants,
prepared
the
financial
statements
for
Gotfrid
and
Burnett,
Barristers
and
Solicitors,
for
the
1969
and
1970
taxation
years.
Gary
Edmund
Baker,
a
senior
investigator
of
the
Special
Investigation
Section,
testified
that
the
Department
of
National
Revenue
was
concerned
with
a
number
of
additional
fees
involving
Burnett
and
his
companies
spanning
the
years
1968
to
1974.
Baker
inspected
the
audit
records
of
the
defendants
and
records
of
the
various
other
parties
concerned.
He
testified
that
it
took
eleven
months
to
assemble
the
evidence
regarding
the
York
Management
fee
alone.
(b)
The
Seizures
On
May
13,
1975
searches
were
simultaneously
conducted
on
the
various
premises.
It
is
clear
from
the
evidence
that
the
seizures
were
extensive.
The
documents
obtained
on
May
13,
1975
filled
76
boxes.
Gary
Baker
testified
that
the
relevant
classes
of
documents
and
relevant
time
period
were
predetermined
and
participating
officers
were
given
guidelines
as
to
what
was
to
be
seized
at
a
two-hour
briefing
session.
Two
boxes
of
documents
were
seized
from
the
private
residence
of
Joseph
Burnett.
Department
of
Revenue
officers
were
instructed
to
seize
all
records,
papers
or
documents
of
a
business
nature
in
Mr
Burnett's
home
and
to
be
alert
for
any
documentation
relating
to
the
construction
and
furnishing
of
his
private
residence
which
could
have
been
charged
to
one
of
Mr
Burnett's
corporations.
One
box
of
documents
was
returned.
The
remaining
documents
have
been
retained
by
the
Department
of
National
Revenue.
Thirty-four
boxes
of
documents
were
seized
from
the
offices
of
CNA
Investors
Group
Ltd.
Seizing
officers
were
instructed
to
seize
documents
of
the
following
businesses:
Goden
Holdings
Limited,
Kelburn
Management
Limited,
Ruthbern
Holdings
Limited
and
the
partnership
of
Gotfrid
and
Burnett.
The
officers
were
instructed
not
to
seize
the
documents
of
CNA
companies.
Gary
Baker
testified
that
the
officers
were
instructed
to
seize
all
documents
relating
to
items
of
income
for
the
years
1968
to
1972.
The
only
expense-related
documents
required
were
those
relating
to
Burnett's
personal
residence.
The
officers
determined
the
relevance
of
the
material
by
file
and
not
by
document.
A
number
of
CNA
documents
were
seized
in
error
and
returned.
Twelve
boxes
of
documents
were
seized
from
the
offices
of
Samuel
Gotfrid,
QC
at
65
Queen
Street
West,
Toronto.
Twenty-four
boxes
of
documents
were
seized
from
his
storage
facilities
located
at
133
Richmond
Street
West,
Toronto,
a
location
not
specified
in
the
authorization.
Gary
Baker
testified
that
the
officers
were
instructed
to
seize
the
records
of
Gotfrid
and
Burnett
for
the
period
January,
1968
to
December,
1972,
inclusive
and
in
particular
to
seize
all
loan
files,
books
of
account
and
all
client
files
but
not
documents
relating
to
expenses.
Russell
Welton,
a
DNR
officer
involved
in
the
Gotfrid
search,
testified
that
Mr
Gotfrid
advised
the
officers
of
the
133
Richmond
Street
West
storage
area
and
accompanied
them
to
that
location.
The
documents
were
in
disarray
and
were
apparently
in
the
process
of
being
destroyed.
The
issue
of
whether
Mr
Gotfrid
consented
to
the
search
and
seizure
at
133
Richmond
Street
West
is
discussed
later
in
these
reasons.
Two
boxes
of
documents
were
seized
from
the
offices
of
Zeifman
and
Co.
Seizing
officers
were
instructed
to
restrict
their
search
to
records
of
Joseph
Burnett,
Goden
Holdings
Limited,
Kelburn
Management
Limited,
Ruthbern
Holdings
Limited
and
Gotfrid
and
Burnett.
In
addition
to
the
files
relating
to
those
parties,
working
papers
for
various
companies
in
which
Burnett
or
Ruthbern
had
an
interest
were
seized.
Mr
Baker
explained
that
the
financial
statements
of
these
companies
were
filed
with
the
returns
of
Burnett
or
Ruthbern.
The
1969,
1970
and
1971
working
paper
files
for
the
Gotfrid
and
Burnett
partnership
and
a
correspondence
file
were
obtained
from
the
offices
of
Perlmutter,
Orenstein,
Giddens,
Newman
and
Co.
Seizing
officers
were
instructed
to
seize
the
Gotfrid
and
Burnett
[or
Gotfrid,
Burnett
and
Kelner]
partnership
records
for
the
period
January,
1968
to
December,
1972,
inclusive.
The
officers
were
instructed
not
to
seize
records
pertaining
to
Samuel
Gotfrid.
The
Department
of
National
Revenue
has
retained
the
custody
and
control
of
all
documents
seized
except
for
a
relatively
small
number
of
documents
which
were
returned,
the
receipts
for
which
were
filed
as
exhibit
4.
Burnett
was
afforded
access
to
all
documents
and
was
provided
with
copies
upon
request.
An
inventory
of
the
documents
seized
on
May
13,
1975
was
filed
as
exhibit
2-2.
Exhibit
2-5
is
a
list
furnished
to
the
defence,
of
documents
which
the
Crown
currently
intends
to
tender
at
the
trial.
Baker
testified
that
25
per
cent
of
the
documents
seized
were
placed
into
“evidence
boxes"
as
being
potentially
relevant
at
trial.
2.
Validity
of
the
May
13,
1975
Searches
and
Seizures
Counsel
for
the
applicants
submit
that
the
search
and
seizure
actions
conducted
on
that
date
under
the
authority
of
subsection
231(4)
of
the
Income
Tax
Act
were
illegal
at
the
time
they
were
executed.
The
validity
is
attacked
on
two
grounds:
(1)
That
the
authorization
dated
May
12,1975
is
on
its
face
invalid;
and
(2)
That
the
search
and
seizure
actions
were
carried
out
in
such
a
way
as
to
exceed
their
authorized
scope.
(a)
Section
231(4)
of
the
Income
Tax
Act
The
authorities
interpreting
subsection
231(4)
of
the
Income
Tax
Act
frequently
affirmed
its
broad
and
sweeping
scope.
Subsections
231(4)
and
(5)
read
as
follows:
(4)
Where
the
Minister
has
reasonable
and
probable
grounds
to
believe
that
a
violation
of
this
Act
or
a
regulation
has
been
committed
or
is
likely
to
be
committed,
he
may,
with
the
approval
of
a
judge
of
a
superior
or
county
court,
which
approval
the
judge
is
hereby
empowered
to
give
on
ex
parte
application,
authorize
in
writing
any
officer
of
the
Department
of
National
Revenue,
together
with
such
members
of
the
Royal
Canadian
Mounted
Police
or
other
peace
officers
as
he
calls
on
to
assist
him
and
such
other
persons
as
may
be
named
therein,
to
enter
and
search,
if
necessary
by
force,
any
building,
receptacle
or
place
for
documents,
books
records,
papers
or
things
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation
and
to
seize
and
take
away
any
such
documents,
books,
records,
papers
or
things
and
retain
them
until
they
are
produced
in
any
court
proceedings.
(5)
An
application
to
a
judge
under
subsection
(4)
shall
be
supported
by
evidence
on
oath
establishing
the
facts
upon
which
the
application
is
based.
The
violations
in
respect
of
which
the
search
may
be
authorized
are
not
confined
to
those
for
which
there
are
reasonable
and
probable
grounds:
In
re
MNR
v
Paroian
et
al,
[1980]
CTC
131;
80
DTC
6077
(Ont
CA);
Royal
Craft
Products
Ltd
and
Coulson
v
The
Queen,
[1980]
CTC
97;
80
DTC
6143
(Alta
CA).
It
follows
that
the
section
does
not
require
the
violation
in
respect
of
which
the
search
is
authorized
to
be
particularized
in
the
authorization
beyond
using
the
words
of
the
provision
itself:
In
re
MNR
v
Paroian
et
al,
supra,
at
138
(DTC
6083).
It
is
precisely
because
of
the
breadth
of
the
general
search
and
seizure
authorized
by
subsection
231(4)
that
it
has
been
held
to
contravene
section
8
of
the
Charter
and
to
be
since
the
Charter
of
no
force
and
effect.
In
MNR
et
al
v
Kruger
Inc
et
al,
supra,
at
512
(DTC
6483)
Pratte.
J
stated:
I
would
be
ready
to
concede
that,
in
certain
circumstances,
the
fact
that
a
taxpayer
has
committed
a
serious
offence
under
the
Income
Tax
Act
may
justify
the
inference
that
he
probably
also
committed
other
offences
under
the
Act.
However,
I
cannot
accept
the
general
proposition
that
the
mere
fact
that
a
taxpayer
has,
at
a
particular
time,
committed
an
offence
under
the
Income
Tax
Act
or
the
Regulations,
however
trifling
that
offence,
affords
sufficient
justification
for
the
general
power
of
search
and
seizure
conferred
by
subsection
231(4).
In
my
view,
that
subsection
violates
section
8
of
the
Constitution
Act,
1982
in
that
it
contravenes
the
right
of
the
taxpayer
“to
be
secure
against
unreasonable
search
and
seizure”.
[Emphasis
added.]
I
emphasize,
however,
that
on
the
application
I
am
called
upon
to
determine
the
legality
and
not
the
reasonableness
of
the
May
13,
1975
search
and
seizure
actions.
Prior
to
the
enactment
of
the
Charter,
subsection
231(4)
legally
authorized
what
have
now
been
held
to
be
unreasonable
searches
and
seizures.
Broad
as
subsection
231(4)
was,
in
my
opinion,
it
did
not
authorize
the
seizure
of
anything
that
may
afford
evidence
of
any
violation
by
an
entirely
unrelated
third
party
unconnected
to
the
parties
implicated
in
the
violation
alleged
in
the
affidavit.
Morden,
JA
interpreted
the
requirements
of
the
section
in
In
re
MNR
v
Paroian
et
al,
supra,
at
139
(DTC
6084)
as
follows:
..
I
would
think
that
in
most
cases,
particularly
where
the
premises
to
be
searched
are
those
of
third
parties,
such
as
lawyers’
offices
or
banks,
it
is
necessarily
implicit
that
the
persons
be
identified
[in
the
authorization].
[Cited
with
approval
in
Goodman
v
Rompkey
et
al
(1982),
137
DLR
(3d)
46
at
56
(SCC).]
(b)
The
authorization
I
have
already
reproduced
in
full
the
authorization
for
the
May
13,
1975
search
and
seizure.
It
is
divided
into
two
parts,
the
first
relating
to
Burnett's
residence
and
to
the
CNA
premises
and
the
second
relating
to
third
party
premises.
Counsel
for
the
applicants
argued
that
the
first
part
of
the
authorization
was
bad
since
it
permitted
the
search
of
third
party
premises,
namely
CNA
Investors
Group
Ltd,
without
specifying
the
targets
of
the
search.
I
am
not
convinced
that
CNA
is,
strictly
speaking,
a
third
party.
The
supporting
affidavit
relates
that
Ruthbern
owned
50
per
cent
of
CNA’s
common
shares
and
that
the
CNA
premises
housed
the
offices
of
the
target
companies.
In
view
of
the
relationship
between
Ruthbern
and
CNA,
in
my
opinion
the
authorization
could
and
did
permit
the
seizure
of
CNA
documents
notwithstanding
the
instructions
given
to
the
seizing
officers
not
to
take
any
CNA
documents
except,
of
course,
as
they
related
to
the
targets
of
the
search.
The
second
part
of
the
authorization
contains
what
Crown
counsel
termed
a
typographical
or
inadvertent
error.
The
Crown
concedes
that
as
framed,
the
second
part
of
the
authorization
permits
two
seizures:
(1)
of
any
documents
pertaining
to
the
targets,
or
(2)
of
any
evidence
of
income
tax
violations.
Normally
an
authorization
under
subsection
231(4)
(as
is
evident
from
the
reported
case
law)
employed
the
words
“that”
or
“which”
rather
than
the
word
“or”,
so
that
each
phrase
modified
the
other.
The
officers
testified
that
they
believed
that
the
authorization
was
in
the
form
always
used
and
indeed
that
they
executed
the
warrant
as
if
it
was
properly
restricted.
In
my
view,
the
error
was
of
an
inadvertent
nature.
However,
because
of
the
misleading
nature
of
the
error
from
the
point
of
view
of
the
citizen
whose
premises
were
to
be
searched,
the
authorization
must
be
strictly
construed
as
framed.
It
is
perfectly
clear
that
the
statute
authorizes
the
seizure
of
documents
only
if
they
may
afford
evidence
of
an
income
tax
violation.
To
authorize
the
seizure
of
any
document
pertaining
to
the
targets
of
the
investigation,
obviously
exceeds
the
scope
of
the
enabling
legislation.
Furthermore,
the
failure
to
name
the
targets
of
the
investigation
in
the
circumstances
of
a
search
and
seizure
at
the
premises
of
a
third
party
professional
is
fatal
to
this
part
of
the
authorization.
As
framed,
it
permits
the
seizure
of
documents
pertaining
not
only
to
the
professionals
themselves
but
also
to
their
completely
unrelated
clients.
Accordingly,
I
find
that
the
second
part
of
the
authorization
which
deals
with
the
search
of
third
party
premises
is
invalid
on
its
face.
I
have
no
hesitation
in
severing
the
invalid
part
from
the
part
authorizing
the
search
at
Burnett’s
residence
and
at
the
CNA
premises.
The
two
parts
have
no
connection
with
one
another.
Separate
searches
and
separate
premises
are
involved.
Re
Regina
and
Johnson
and
Franklin
Wholesale
Distributors
Ltd
(1971),
3
CCC
(2d)
484
at
490
(BCCA).
(c)
133
Richmond
Street
West
It
was
argued
by
counsel
for
the
applicants
that
even
if
the
authorization
was
valid,
the
searches
and
seizures
effected
were
unlawful
as
they
exceeded
their
authorized
scope.
The
first
objection
relates
to
the
seizure
of
documents
at
133
Richmond
Street
West,
a
storage
area
of
Samuel
Gotfrid
which
was
not
named
in
the
authorization.
The
seizure
at
that
location
is
clearly
unlawful
unless
the
Crown
establishes
consent.
I
accept
the
evidence
of
Russell
Whelton,
the
officer
in
charge
of
the
search
at
Mr
Gotfrid’s
premises.
While
his
testimony
on
this
point
was
at
times
confusing,
on
the
whole
tenor
of
the
evidence,
it
appears
that
Mr
Gotfrid
did
in
fact
consent
to
the
seizure
at
133
Richmond
Street
West
of
documents
within
the
parameters
of
the
authorization.
Whelton
stated
that
Gotfrid
volunteered
the
existence
of
the
storage
area,
advised
him
that
the
documents
there
were
to
be
destroyed,
accompanied
the
officers
to
the
area
and
left
them
there
with
a
key.
Many
of
the
documents
were
in
garbage
bags.
Whelton
testified
that
he
was
aware
that
the
premises
were
not
named
on
the
warrant
and
that
he
would
not
have
gone
there
without
Gotfrid’s
permission.
Whelton
testified
that
he
may
have
told
Gotfrid
that
another
authorization
could
be
obtained.
Although
Mr
Gotfrid
subsequently
objected
to
the
seizure
at
his
premises
generally,
he
apparently
was
satisfied
once
he
was
provided
with
a
receipt
detailing
the
documents
taken.
Significantly,
the
receipt
does
not
include
a
list
of
the
documents
taken
from
133
Richmond
Street
West.
In
all
these
circumstances,
I
am
satisfied
that
Gotfrid
did
in
fact
consent
to
the
seizure
at
133
Richmond
Street
West
in
so
far
as
the
documents
fell
within
the
proper
scope
of
the
authorization
as
it
related
to
his
other
premises.
A
large
number
of
the
documents
taken
from
133
Richmond
Street
West
were
clearly
outside
the
parameters
of
the
search.
For
example,
Mr
Got-
frid's
client
files
from
the
1940s
and
1950s
were
taken.
Whelton
admitted
that
in
view
of
the
fact
that
Mr
Gotfrid
had
advised
him
that
the
documents
were
to
be
destroyed,
he
was
not
as
concerned
with
the
guidelines
as
he
would
otherwise
have
been.
In
a
search
and
seizure
of
this
breadth
a
number
of
documents
will
inevitably
be
taken
in
error.
The
items
falling
outside
the
authorized
parameters
of
the
seizure
will
be
unlawfully
seized.
This
would
not
however
in
my
opinion
invalidate
the
entire
seizure.
Although
counsel
were
unable
to
provide
me
with
any
cases
on
this
point,
it
seems
to
me
that
only
the
irrelevant
items
would
be
unlawfully
seized
unless
the
extent
and
nature
of
the
unlawful
seizure
was
of
such
significance
that
it
tainted
the
whole
operation.
In
my
opinion,
the
seizure
from
133
Richmond
Street
West
was
such
a
seizure
and
was
therefore
unlawful.
(d)
The
Authorized
Scope
of
the
Searches
and
Seizures
With
respect
to
the
nature
of
the
search
and
seizure
as
a
whole,
the
evidence
established
that
after
a
full
audit
and
an
eleven-month
investigation,
Baker
considered
and
determined
what
classes
of
documents
could,
in
his
opinion,
afford
evidence
of
an
income
tax
violation.
Generally
speaking,
Baker
defined
the
standards
of
relevance
by
reference
to
the
parties
implicated
in
the
alleged
violation,
the
years
under
investigation
(1968
to
1974)
and
in
most
cases
restricted
the
class
of
documents
to
be
seized
to
those
of
an
income
nature.
Baker
testified
that
all
items
related
to
income,
unreported
or
reported,
were
necessary
to
investigate
the
allegedly
false
returns
of
Burnett
and
Ruthbern
In
essence,
his
rationale
was
that
the
relationship
of
reported
income
to
unreported
income
had
to
be
examined
in
order
to
determine
whether
there
was
a
pattern
of
non-disclosure
and
whether
the
non-disclosure
was
inadvertent
or
deliberate.
It
is
clear
on
the
evidence
that
the
officers
executing
the
search
seized
the
documents
by
reference
to
the
files
and
did
not
examine
the
documents
contained
therein
individually.
At
Gotfrid's
premises
and
Zeifman's
premises,
the
officers
seized
the
files
after
examining
index
cards
which
were
provided
for
their
perusal.
A
great
many
documents
were
seized
on
May
13,
1975.
All
documents
of
a
business
nature
at
Burnett's
residence
were
seized
and
officers
inspected
Mrs
Burnett's
safety
deposit
box.
A
number
of
CNA
documents
were
seized
from
the
CNA
premises.
All
client
files
of
the
law
firm
of
Gotfrid
and
Burnett
for
the
target
years
were
seized.
Working
papers
of
companies
whose
financial
statements
were
attached
to
Burnett's
or
Ruthbern's
returns
were
seized
from
Zeifman
and
Co.
Files
relating
to
Mrs
Burnett
and
her
private
company
were
left
behind
upon
Zeifman's
objection
to
their
seizure.
Counsel
for
the
applicants
urged
me
to
characterize
what
occurred
as
a
wholesale
seizure
without
a
search.
They
pointed
to
a
number
of
items
on
the
inventory
filed
as
Exhibit
2-2
which,
in
their
submission,
bore
no
connection
to
a
tax
violation
or
were
outside
the
guidelines
given.
They
argued
that
the
actions
regarding
Mrs
Burnett
and
133
Richmond
Street
West
make
it
clear
that
there
was
no
attempt
by
the
officers
to
stay
within
the
authorization
or
even
within
their
own
guidelines.
I
fail
to
see
what
real
use
I
can
make
of
the
inventory
list.
It
is
impossible
from
my
vantage
point
to
determine
the
relevance
of
any
particular
item
to
a
possible
tax
violation
based
upon
the
terse
description
given
on
the
list.
Certainly,
some
of
the
CNA
documents
listed
pertain
to
one
of
the
target
companies.
Most
of
the
items
put
to
Baker
during
his
cross-examination,
were
justified
by
him
as
pertaining
to
the
income
of
Ruthbern
or
Burnett.
I
can
conceive
that
even
a
Christmas
card
list
can,
in
some
circumstances,
provide
some
evidence
of
a
tax
violation,
as
for
example
tending
to
establish
a
relationship
between
parties.
In
my
view
it
has
not
been
established
that
a
significant
number
of
irrelevant
documents
were
taken
relative
to
the
search
and
seizure
action.
In
my
view
the
difficult
issues
that
arise
in
assessing
the
propriety
of
the
conduct
of
a
search
and
seizure
action
under
subsection
231(4)
of
the
Income
Tax
Act
are
as
follows:
(1)
To
what
extent
must
the
documents
be
examined
at
the
time
of
the
search
in
order
to
constitute
a
valid
search.
More
particularly,
must
each
document
be
examined
individually
for
its
evidentiary
value?
(2)
What
standards
should
be
applied
in
determining
whether
documents
or
records
‘may
afford
evidence
as
to
the
violation
of
any
provisions
of
the
Income
Tax
Act
or
Regulations”?
It
is
clear
that
the
documents
were
not
examined
individually
in
the
present
case.
Files
were
examined
only
to
the
extent
necessary
to
determine
whether
they
fell
within
the
classes
of
documents
that
Mr
Baker
had
predetermined
were
relevant.
Counsel
for
the
applicants
submitted
that
only
an
examination
of
each
document
individually
would
constitute
a
valid
search
under
subsection
231(4).
Consequently,
they
argued,
there
was
no
authority
to
take
documents
that
were
not
so
examined
individually
for
their
evidentiary
value.
The
applicants
relied
heavily
on
Kelly
Douglas
and
Company
Limited
v
The
Queen
et
al,
[1981]
CTC
457
at
461-62;
82
DTC
6036
at
6039-
6040
(BCSC):
As
I
view
subsection
231(4),
it
is
to
be
considered
in
two
parts.
The
first
part
is
the
entry
and
search
for
evidence,
the
second
is
the
seizure
of
evidence.
They
are
not
the
same
thing
as
the
only
seizure
that
is
authorized
is
of
documents
that
may
afford
evidence
of
a
violation.
If
no
documents
are
found
in
the
search
that
may
afford
evidence,
then
nothing
can
be
seized.
Likewise,
the
authorization
does
not
permit
documents
to
be
taken
that
have
not
been
examined
or
searched
for
their
evidentiary
value
in
proving
a
violation.
Therefore,
a
wholesale
seizure
is
not
authorized.
The
scheme
of
the
Act
is
not
to
seize,
then
search
—
but
to
search,
and
seize
only
documents
that
may
afford
evidence
of
violations.
I
have
carefully
read
the
affidavits
of
the
officers
of
the
Tax
Department
and
the
cross-examination
of
both
Mr
Kanjer
and
Mr
Brown
and
am
unable
to
find
that
there
were
any
documents
or
records
examined
or
seized
that
in
the
words
of
the
section
“may
afford
evidence
as
to
the
violation
of
any
provisions
of
the
Income
Tax
Act
or
regulations”.
I
find
that
the
records
seized
in
this
case
were
not
lawfully
seized
pursuant
to
the
authorization.
There
is
no
right
to
seize,
then
search,
and
if
the
officers
are
not
able
to
say
that
they
seized
documents
that
may
provide
evidence
of
the
breach,
then
those
documents
cannot
be
seized
by
the
Department
and
must
be
returned.
In
In
re
MNR
v
Paroian
et
al,
supra,
at
138
(DTC
6083),
Morden,
JA
stated:
With
respect
to
the
obvious
potential
intrusion
on
personal
rights
of
property
and
privacy,
to
which
I
have
already
referred,
it
is
obvious
that
Parliament
intended
safeguards
to
be
provided
by:
(c)
that
those
conducting
the
search
will
be
officers
of
the
Department
and,
possibly,
other
persons
named
in
the
authorization
and
who
will,
accordingly,
have
sufficient
expertise
in
tax
matters
to
confine
seizures
to
what
is
relevant.
Counsel
for
the
applicants
submitted
that
it
is
implicit
in
that
safeguard
that
the
officers
must
look
at
the
documents.
I
agree
that
there
must
be
some
examination
to
see
whether
the
documents
or
records
may
afford
evidence
of
an
income
tax
violation.
If
Kelly
Douglas
and
Company
Limited,
supra,
stands
for
the
proposition
that
in
every
case,
regardless
of
the
circumstances,
documents
may
be
seized
only
if
they
have
been
examined
individually
for
their
evidentiary
value,
I
do
not
accept
it.
(In
that
case
none
of
the
documents
seized
afforded
any
evidence
of
a
violation.)
A
search
and
seizure
of
the
kind
authorized
here
would
take
months
to
complete
if
each
document
had
to
be
examined
individually.
To
interpret
the
legislation
in
the
way
urged
could
well
lead
to
the
serious
disruption
of
private
and
business
premises,
could
involve
inordinate
strain
on
public
resources,
and
might
well
found
a
legitimate
complaint
that
the
manner
in
which
a
search
is
executed
is
oppressive.
To
insist
that
in
all
cases
the
determination
of
relevance
be
based
upon
the
examination
of
the
documents
at
the
time
of
the
search
is
similarly
impractical.
It
seems
to
me
that
the
search
must
be
as
detailed
as
is
necessary
to
determine
whether
the
documents
may
afford
evidence
of
a
violation
and
that
the
detail
required
will
depend
on
how
broad
the
standards
of
relevance
properly
are.
The
difficult
question
is
precisely
what
standard
is
to
be
applied
in
assessing
whether
a
document
“may
afford
evidence
as
to
the
violation
of
any
provision"
of
the
Income
Tax
Act
or
regulations.
The
word
“may"
certainly
suggests
that
a
possibility
rather
than
a
probability
of
evidentiary
value
is
envisaged.
As
has
been
often
pointed
out,
subsection
231(4)
is
essentially
an
investigative
power,
perhaps
the
most
important
of
a
series
of
investigative
powers
given
to
the
Minister
in
the
context
of
an
income
tax
system
based
upon
self-assessment:
MNR
et
al
v
Kruger,
Inc
et
al,
supra,
at
517-18
(DTC
6487-88);
Royal
Craft
Products
Ltd
and
Coulson
v
The
Queen
et
al,
supra,
at
102
(DTC
6147-48).
It
seems
to
me
that
the
standards
both
for
how
detailed
an
examination
of
the
documents
must
be
and
for
how
to
assess
whether
the
documents
may
afford
evidence
of
a
violation,
must
depend
to
a
large
degree
on
the
circumstances
of
the
particular
investigation.
Generally
speaking,
the
more
complex
the
transactions
being
investigated,
the
broader
the
standards
of
relevance
will
be.
A
search
and
seizure
based
upon
a
document
by
document
examination
and
based
upon
strict
standards
of
relevance
may
well
be
appropriate
in
an
allegation
of
a
simple
violation.
In
such
a
case
the
evidentiary
value
of
a
document
will
probably
oe
quite
evident.
Where
the
alleged
misconduct
is
of
a
complex
nature
in
which
funds
are
allegedly
funnelled
through
a
number
of
interrelated
companies
with
a
view
to
hiding
their
disposition,
it
seems
to
me
that
the
number
of
documents
that
may
afford
evidence
of
such
a
violation
may
well
be
very
great
indeed.
In
such
a
case,
an
entire
class
of
documents
may
in
fact
be
necessary
to
trace
the
transactions.
Granted,
many
documents
in
a
file
may
not,
in
the
final
analysis,
be
relevant
to
any
tax
violation.
However,
it
may
be
impossible
to
preclude
their
relevance
without
a
detailed
examination
of
all
the
documents
seized.
In
the
present
case
the
search
was
admittedly
extensive
and
the
standards
of
relevance
broad.
Because
of
the
complexity
of
the
transactions,
the
alleged
convoluted
movement
of
funds,
the
number
of
interrelated
companies
involved,
the
alleged
falsification
of
records
and
the
requirement
of
a
deliberate
rather
than
inadvertent
failure
to
report,
in
my
view
the
seizure
of
broad
classes
of
documents
was
justified.
I
have
borne
in
mind
Baker’s
testimony
that
in
addition
to
the
transaction
set
out
in
the
affidavit,
other
financing
fees
were
being
investigated
at
the
time.
Although
the
officers
examined
files
only
in
a
general
way,
I
am
satisfied
that
this
constituted
a
sufficient
search
of
the
nature
of
the
files
seized
to
determine
whether
they
fell
within
the
predetermined
classes
of
relevant
documents.
I
am
satisfied
that
the
seizure
from
Burnett's
personal
residence
of
all
business
records
and
the
seizure
from
the
Goden,
Kelburn
&
Ruthbern
premises
at
65
Queen
Street
West
did
not
exceed
the
scope
of
the
seizure
authorized
at
that
time
by
subsection
231(4)
of
the
Income
Tax
Act.
In
view
of
my
finding
that
the
authorization
with
respect
to
the
premises
of
Samuel
Gotfrid,
Zeifman
and
Co
and
Perlmutter,
Orenstein
is
invalid,
it
is
not
necessary
to
decide
whether
the
seizures
there
were
excessive.
Had
the
authorization
been
properly
framed,
I
would
have
held
that
the
seizures
effected
at
the
accountants'
offices
were
within
the
proper
ambit
of
the
section.
The
seizure
of
all
client
files
of
the
partnership
of
Gotfrid
and
Burnett,
however,
gives
me
considerable
pause.
The
partnership
as
such
was
not
under
investigation.
Crown
counsel
stated
that
the
partnership
income
formed
income
of
Burnett
and
was
thus
relevant.
On
the
basis
of
the
affidavits,
it
seems
to
me
that
seizure
was
only
necessary
to
negate
a
defence
or
explanation
allegedly
put
forward
by
Mr
Burnett.
It
may
well
be
that
such
a
seizure
was
nonetheless
authorized,
particularly
in
view
of
the
alleged
falsification
of
the
law
firm's
records.
Therefore,
in
my
judgment,
the
general
manner
in
which
the
May
13,
1975
searches
and
seizures
were
executed
did
not
exceed
their
authorized
scope.
With
respect
to
the
seizure
from
133
Richmond
Street
West,
I
am
satisfied
that
Mr
Gotfrid
consented
to
a
seizure
within
the
ambit
of
subec-
tion
231(4).
I
do
find,
however,
that
the
seizure
there
was
unlawful;
it
was
a
wholesale
seizure
and
exceeded
the
scope
of
Mr
Gotfrid's
consent.
In
the
result,
I
find
that
the
seizures
from
the
premises
of
Samuel
Gotfrid
(including
133
Richmond
Street
West),
Zeifman
and
Co
and
Perlmutter,
Orenstein,
Giddens,
Newman
and
Co
were
unlawful.
All
other
search
and
seizure
actions
on
May
13,
1975
were
properly
authorized
and
properly
executed.
II.
March
1,
1977
Seizure
1.
The
Facts
(a)
The
RCMP
Seizures
On
July
24,
1975,
pursuant
to
a
Criminal
Code
search
warrant
authorizing
the
seizure
of
“accounting
documents,
including
ledgers,
journals,
cancelled
cheques,
cheque
stubs
and
other
documents
and
material"
from
the
offices
of
CNA
Investors
Group
Ltd,
Ruthbern
Holdings
Limited
and
Kel-
burn
Management
Ltd
in
relation
to
the
commission
of
the
offence
of
“theft
section
294(a)
Criminal
Code”,
Constable
Cameron,
a
member
of
the
RCMP
seized
numerous
records
from
the
premises
located
at
65
Queen
Street
West,
Suite
900,
Toronto,
Ontario.
Constable
Cameron
conducted
two
further
search
and
seizures
at
the
same
premises
on
August
27
and
September
12,
1975
pursuant
to
Criminal
Code
search
warrants
authorizing
the
seizure
of
specified
documents.
Investigators
from
the
Department
of
National
Revenue
had
access
to
and
examined
the
books
and
records
while
in
the
possession
of
the
RCMP.
Access
by
the
DNR
was
arranged
informally
and
was
not
obtained
pursuant
to
an
application
under
subsection
446(5)
of
the
Criminal
Code.
(b)
DNR
seizure
from
the
RCMP,
December
23,
1976
On
December
21,
1976
an
application
was
filed
pursuant
to
section
446
of
the
Criminal
Code
for
the
return
of
the
documents.
On
that
same
afternoon,
Burnett
was
advised
by
a
solicitor
for
the
Attorney-General
that
criminal
proceedings
against
him
would
not
be
instituted
and
that
all
documents
would
be
returned
on
December
23,
1976.
On
the
morning
of
December
23,
1976,
all
books
and
records
in
the
possession
of
the
RCMP
were
seized
by
the
Department
of
National
Revenue.
The
seizure
of
the
72
boxes
was
purportedly
made
pursuant
to
paragraph
231(1)(d)
of
the
Income
Tax
Act.
Baker
testified
that
on
the
basis
of
his
examination
of
the
records
while
they
were
in
the
possession
of
the
RCMP
he
was
of
the
opinion
that
all
the
documents
afforded
evidence
supporting
violations
of
the
Income
Tax
Act.
On
January
3,
1977,
Joseph
Burnett,
Burnac
Corporation
Limited,
Burnac
Mortgage
Investors
Limited
and
Burnac
Investors
Realty
Limited
brought
an
application
against
the
Minister
of
National
Revenue
to
quash
the
December
23,
1976
seizure.
On
February
4,
1977,
Mahoney,
J
of
the
Federal
Court,
Trial
Division,
quashed
the
December
23,
1976
seizure,
holding
that
the
RCMP
premises
were
not
premises
or
a
place
where
a
person,
authorized
for
the
purposes
of
subsection
231(1)
of
the
Income
Tax
Act,
is
authorized
to
enter
and
to
audit,
examine
and
seize
the
books
or
records
of
the
corporate
applicants.
(c)
DNR
Re-seizure,
March
1,
1977
The
Department
of
National
Revenue
retained
the
documents
pending
the
decision
as
to
whether
or
not
to
appeal
the
order
of
Mahoney,
J.
On
February
25,
1977
Burnett
was
advised
that
the
order
would
not
be
appealed.
On
the
same
date,
February
25,
1977,
Gary
Edmund
Baker
swore
a
thorough
and
extensive
affidavit
in
support
of
an
application
for
the
approval
of
a
Ministerial
authorization
to
enter,
search
and
seize
the
documents
to
be
returned
pursuant
to
Mahoney,
J’s
order.
The
affidavit
makes
full
disclosure
of
the
circumstances
surrounding
the
initial
RCMP
seizure,
the
seizure
by
the
DNR
on
December
23,
1976,
the
subsequent
quashing
of
that
seizure
by
Mahoney,
J
and
the
imminent
return
of
the
documents.
Baker
deposes
that
as
a
result
of
his
examination
of
the
documents
while
in
the
possession
of
the
RCMP
and
of
his
examination
of
the
records
of
the
various
companies,
financial
institutions
and
individuals
involved,
he
had
reasonable
and
probable
grounds
to
believe
that:
(1)
CNA
Investors
Group
Ltd
had
committed
the
offences
of
failing
to
report
income
received
of
$215,000
in
its
1974
return
and
of
falsely
claiming
expenses
of
$6,089.88
in
its
1973
return;
and
(2)
Burnett
had
committed
the
offences
of
failing
to
report
income
received
of
$340,000
in
his
1973
return
and
of
$911,089.88
in
his
1974
return.
The
transactions
alleged
relate
to
items
29,
30,
31,
32,
33,
35
and
36
in
the
prosecution
as
outlined
in
the
opening
statement
of
Crown
counsel.
In
part,
it
is
alleged
that
$855,000
in
fees
and
commissions
for
loans
arranged
by
CNA
Mortgage
Investors
Ltd
were
paid
to
Federal
Mortgage
Corporation
on
behalf
of
Goden
and
eventually
found
their
way
through
the
Banco
Obrero
in
Puerto
Rico
to
Ruthbern,
where
they
were
credited
as
a
loan
payable
to
Burnett.
These
moneys
were
not
reported
as
income
in
Burnett's
returns.
On
the
basis
of
the
supporting
affidavit,
the
Director-General,
Special
Investigations,
Department
of
National
Revenue,
pursuant
to
subsection
231(4)
of
the
Income
Tax
Act,
authorized
certain
Department
of
National
Revenue
officers
to
search
“the
business
premises
and
offices
of
Burnac
Corporation
Limited,
Burnac
Realty
Investors
Limited,
Burnac
Mortgage
Investors
Ltd
and
Joseph
Burnett
.
.
.
at
65
Queen
Street
West”
and
“any
vehicles
owned,
rented,
leased
or
controlled"
by
the
said
parties,
“for
documents,
books,
records,
papers
or
things
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Income
Tax
Act
or
regulations
and
to
seize
and
take
away
any
such
documents,
books,
records,
papers
or
things
.
.
On
February
28,
1977,
Cornish,
Co
Ct
J
approved
the
authorization.
The
72
boxes
of
records
seized
from
the
RCMP
were
sorted
into
75
boxes
by
DNR
officials,
loaded
into
a
van
and
taken
to
the
offices
of
Burnac
Corporation
at
65
Queen
Street
West
on
March
1,
1977.
Burnett
told
the
investigators
to
take
the
records
to
the
loading
dock.
The
truck
and
its
contents
returned
to
the
Revenue
building,
ostensibly
because
the
loading
dock
was
blocked
by
another
truck.
Obviously
the
documents
were
retained
because
the
DNR
was
uncertain
that
the
loading
dock
would
constitute
the
necessary
repossession
required
to
execute
the
authorization.
That
afternoon
employees
of
Burnac
Corporation
Ltd
arrived
to
receive
the
documents.
The
75
boxes
were
reorganized
by
them
into
66
boxes,
a
receipt
was
signed
and
the
boxes
were
loaded
onto
a
truck.
Mr
Baker
produced
the
authorization
and
re-seized
49
of
the
boxes.
On
March
7,
1977,
Burnac
Corporation,
Burnac
Realty
Investors
Limited,
Burnac
Mortgage
Investors
Ltd
and
Joseph
Burnett
launched
a
motion
to
quash
the
March
1,
1977
seizure.
On
November
18,
1977,
Mahoney,
J
denied
the
preliminary
objections
taken
by
the
applicants,
Burnac
Corporation
Limited
et
al,
to
three
motions
by
the
respondent,
The
Minister
of
National
Revenue,
seeking
continued
cross-examination
of
the
deponents
on
affidavits
filed
in
support
of
the
original
application.
Burnac
Corporation
Limited
et
al
subsequently
filed
a
notice
of
appeal
from
the
order
of
Mahoney,
J.
The
appeal
was
discontinued.
The
same
applicants
also
filed
a
notice
of
application
for
judicial
review
of
the
March
1,
1977
seizure,
which
application
was
subsequently
discontinued
on
October
4,
1979.
The
Department
of
National
Revenue
has
retained
the
custody
and
control
of
virtually
all
documents
seized
on
March
1,
1977.
2.
Validity
of
the
March
1,
1977
Seizure
Counsel
for
the
applicants
conceded
that
in
determining
the
legality
of
the
seizure
of
the
second
group
of
documents,
the
seizure
on
March
1,
1977
pursuant
to
the
authorization
approved
under
subsection
231(4)
of
the
Income
Tax
Act
is
determinative.
It
is
common
ground
that
the
illegalities
alleged
in
respect
of
the
prior
seizures
and
examinations
of
those
documents
are
relevant
only
as
circumstances
to
be
considered
in
the
context
of
subsection
24(2)
of
the
Charter.
It
is
conceded
that
the
authorization
is
on
its
face
lawful.
Counsel
argued
that,
as
in
the
May
13,
1975
seizure,
documents
were
seized
that
were
outside
the
scope
of
the
authorization.
It
is
clear
on
the
evidence
that
the
documents
had
been
examined
in
some
detail
by
Mr
Baker
and
that
a
significant
number
of
the
documents
in
the
possession
of
the
DNR
were
returned
and
not
seized.
In
view
of
these
facts
and
for
the
reasons
discussed
in
relation
to
the
scope
of
the
May
13,
1975
seizure,
I
find
no
basis
to
conclude
that
this
was
a
wholesale
seizure.
Accordingly,
I
find
that
the
March
1,
1977
search
and
seizure
was
a
lawful
one.
III.
Exclusion
of
Evidence
under
subsection
24(2)
of
the
Charter
The
applicants
seek
recourse
to
section
24
of
the
Charter.
In
the
context
of
a
pre-Charter
search
and
seizure,
the
spectre
of
retrospectivity
raises
its
head.
A
consistent
line
of
authorities
has
held
that
the
substantive
rights
conferred
by
the
Charter
speak
prospectively.
It
is
conceded
that
the
rights
in
section
8
of
the
Charter
cannot
be
applied
retrospectively.
Sections
8
and
24
read
as
follows:
8.
Everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure.
24.
(1)
Anyone
whose
rights
or
freedoms,
as
guaranteed
by
this
Charter,
have
been
infringed
or
denied
may
apply
to
a
court
of
competent
jurisdiction
to
obtain
such
remedy
as
the
court
considers
appropriate
and
just
in
the
circumstances.
(2)
Where,
in
proceedings
under
subsection
(1),
a
court
concludes
that
evidence
was
obtained
in
a
manner
that
infringed
or
denied
any
rights
or
freedoms
guaranteed
by
this
Charter,
the
evidence
shall
be
excluded
if
it
is
established
that,
having
regard
to
all
the
circumstances,
the
admission
of
it
in
the
proceedings
would
bring
the
administration
of
justice
into
disrepute.
Subsections
24(1)
and
(2)
have
different
threshold
requirements.
Subsection
(1)
is
of
general
application
and
affords
a
broad
discretionary
remedy.
Subsection
(2),
on
the
other
hand,
deals
specifically
with
the
exclusion
of
evidence,
a
far
more
drastic
measure.
It
seems
to
me
that
the
purpose
of
section
24
is
to
give
meaningful
effect
to
the
guarantee
of
the
rights
and
freedoms
afforded
by
the
Charter
by
providing
a
remedy
for
their
infringement,
thus
reinforcing
the
constitutional
rights
and
at
the
same
time
tending
to
deter
inappropriate
governmental
action.
Subsection
24(2)
is
prepared
to
achieve
that
result
in
a
proper
case
even
at
the
expense
of
the
pursuit
of
truth.
Section
24
is
clearly
aimed
at
protecting
constitutional
rights.
The
section
requires
that
the
applicant
be
someone
“whose
rights
or
freedoms
as
guaranteed
by
this
Charter
have
been
infringed
or
denied”.
Subsection
24(2)
imposes
the
additional
requirement
that
“evidence
was
obtained
in
a
manner
that
infringed
or
denied
any
rights
or
freedoms
guaranteed
by
this
Charter”.
Both
requirements
raise
difficult,
but
quite
different,
questions
of
interpretation
and
retrospectivity.
I
propose
to
deal
first
with
the
main
application
under
subsection
24(2)
for
the
exclusion
of
evidence
obtained
pursuant
to
the
search
and
seizure
actions
of
May
13,
1975
and
March
1,
1977.
1.
Section
24(2)
of
the
Charter
Subsection
24(2)
requires
that
the
“evidence
was
obtained
in
a
manner
that
infringed
or
denied
any
rights
or
freedoms
guaranteed
by
the
Charter”.
(Emphasis
added.)
R
v
Longtin
(1983),
5
CCC
(3d)
12
(Ont.
CA),
R
v
Kresa-
noski,
unreported,
Alta
QB,
released
January
11,
1985
and
Re
Potma
and
The
Queen
(1982),
67
CCC
(2d)
19
(Ont
SC),
refused
to
apply
subsection
24(2)
to
exclude
evidence
obtained
prior
to
the
enactment
of
the
Charter
on
the
ground
that
to
do
so
would
involve
a
retrospective
application
of
a
substantive
Charter
right.
In
R.
v
Longtin,
supra,
at
15-16,
Blair,
JA
held
that
section
8
did
not
apply
to
a
pre-Charter
search
which
was
on
the
facts
unlawful:
The
recent
decision
of
the
Court
of
Appeal
of
Saskatchewan
in
R.
v
Lee
(1982),
8
WCB
422
[since
reported
1
CCC
(3d)
327,
142
DLR
(3d)
574]
establishes
that
s.
10(b)
of
the
Charter
does
not
operate
retrospectively.
The
right
to
be
informed
of
the
right
to
retain
and
instruct
counsel
is
not
a
mere
procedural
rule
but
a
new
substantive
right
conferred
by
the
Charter.
It
can
apply
only
to
persons
arrested
after
the
Charter
took
effect
and,
therefore,
cannot
apply
to
this
case.
The
same
reasoning
applies
to
s
8
of
the
Charter
which
creates
the
new
substantive
right
to
be
secure
against
unreasonable
search
and
seizure.
That
section
does
not
have
retrospective
effect
and,
accordingly,
cannot
be
relied
on
by
the
appellant.
On
a
plain
and
commonsense
reading
of
subsection
24(2),
the
relevant
time
of
the
infringement
of
a
Charter
right
is
at
the
time
the
evidence
was
obtained.
In
this
case
the
evidence
was
obtained
at
the
time
of
the
seizures
in
1975
and
1977.
In
the
context
of
a
pre-Charter
search
and
seizure,
section
8
can
be
viewed
as
having
been
infringed
at
that
time
only
if
section
8
is
given
retrospective
effect.
Counsel
for
the
applicants
submitted
that
subsection
24(2)
merely
provides
a
new
remedy
for
the
breach
of
common
law
rights
which
have
subsequently
been
guaranteed
by
the
Charter.
It
was
urged
that
this
approach
is
indicated
by
the
use
in
section
24
of
the
phrase
“guaranteed
by
this
Charter”
rather
than
the
phrase
“created
by
this
Charter”.
I
do
not
agree
that
the
use
of
the
word
“guaranteed”
has
the
significance
contended.
It
seems
evident
that
the
word
“created”
could
have
been
substituted
without
incurring
the
danger
of
limiting
the
applicability
of
section
24
to
Charter
rights
that
had
no
prior
existence
in
statutory
or
common
law.
In
my
view,
the
pivotal
concern
of
subsection
24(2)
is
the
manner
in
which
evidence
is
obtained:
it
is
only
the
violation
of
constitutionally
entrenched
rights
that
gives
rise
to
the
remedy
in
subsection
24(2).
Accordingly,
I
am
of
the
opinion
that
subsection
24(2)
cannot
apply
where
evidence
was
obtained
pursuant
to
a
search
and
seizure
effected
prior
to
the
enactment
of
the
Charter.
2.
Application
on
the
Merits
In
the
event
that
I
am
wrong
in
my
interpretation
of
the
applicability
of
subsection
24(2)
to
a
pre-Charter
search
and
seizure,
I
propose
to
deal
with
the
application
on
the
merits
and
to
examine
whether
it
is
established,
in
all
the
circumstances,
that
the
admission
of
the
evidence
in
these
proceedings
would
bring
the
administration
of
justice
into
disrepute.
Evidence,
although
improperly
obtained,
is
prima
facie
admissible.
The
onus
under
subsection
24(2)
is
upon
the
applicant
to
establish,
on
a
balance
of
probabilities,
that
in
all
the
circumstances,
the
admission
of
the
evidence
would
tend
to
bring
the
administration
of
justice
into
disrepute:
R
v
Chapin
(1983),
7
CCC
(3d)
538
at
541
(Ont
CA);
R
v
Simmons
(1984),
45
OR
(2d)
609
at
633
(CA);
R
v
Noble
(1984),
48
OR
(2d)
643
(CA).
When
will
the
admission
of
illegally
obtained
evidence
tend
to
bring
the
administration
of
justice
into
disrepute?
The
so-called
“community
shock”
test
finds
its
roots
in
Lamer,
J’s
dissenting
decision
in
Rothman
v
The
Queen,
[1981]
1
SCR
640
at
697;
59
CCC
(2d)
30
at
74
in
which
he
holds
that
a
confession
ought
to
be
excluded
from
evidence
if
its
admission
would
bring
the
administration
of
justice
into
disrepute:
The
Judge,
in
determining
whether
under
the
circumstances
the
use
of
the
statement
in
the
proceedings
would
bring
the
administration
of
justice
into
disrepute,
should
consider
all
of
the
circumstances
of
the
proceedings,
the
manner
in
which
the
statement
was
obtained,
the
degree
to
which
there
was
a
breach
of
social
values,
the
seriousness
of
the
charge,
the
effect
the
exclusion
would
have
on
the
result
of
the
proceedings.
It
must
also
be
borne
in
mind
that
the
investigation
of
crime
and
the
detection
of
criminals
is
not
a
game
to
be
governed
by
the
Marquess
of
Queensberry
rules.
The
authorities,
in
dealing
with
shrewd
and
often
sophisticated
criminals,
must
sometimes
of
necessity
resort
to
tricks
or
other
forms
of
deceit
and
should
not
through
the
rules
be
hampered
in
their
work.
What
should
be
repressed
vigorously
is
conduct
on
their
part
that
shocks
the
community.
In
R
v
Simmons,
supra,
Chief
Justice
Howland
cites
the
passage
from
the
decision
of
Lamer,
J
and
states
at
634:
In
my
opinion,
in
determining
whether
the
administration
of
justice
has
been
brought
into
disrepute
within
s.
24(2),
the
following
matters
are
of
importance:
the
nature
and
extent
of
the
illegality,
the
manner
in
which
the
evidence
was
obtained,
the
good
faith
or
the
lack
of
good
faith
of
the
persons
who
obtained
the
evidence,
whether
the
accused’s
rights
under
the
Charter
were
knowingly
infringed,
and
the
seriousness
of
the
charge.
This
list
is
not
intended
to
be
all-
inclusive.
There
may
be
other
matters
of
importance
which
should
be
considered.
If
the
evidence
is
obtained
in
such
a
manner
as
to
shock
the
Canadian
community
as
a
whole,
iot
would
no
doubt
be
inadmissible
as
bringing
the
administration
of
justice
into
disrepute.
There
may,
however,
be
instances
where
the
administration
of
justice
is
brought
into
disrepute
within
s.
24(2)
without
necessarily
shocking
the
Canadian
community
as
a
whole.
In
my
opinion,
it
is
preferable
to
consider
every
case
on
its
merits
as
to
whether
it
satisfies
the
requirements
of
s.
24(2)
of
the
Charter
and
not
to
substitute
a
“community
shock”
or
any
other
test
for
the
plain
words
of
the
statute.
In
R
v
Chapin,
supra,
where
a
search
of
a
truck
in
which
marijuana
was
found
was
held
to
be
unreasonable
by
the
trial
judge
within
s.
8
of
the
Charter,
this
Court
concluded
that
the
conduct
of
the
police
officers
was
not
such
as
to
shock
the
community,
and
in
any
event
the
admission
in
evidence
of
the
finding
of
the
marijuana
would
not
bring
the
administration
of
justice
into
disrepute.
It
was
felt
that
the
police
officers
had
acted
in
good
faith
and
there
had
been
no
flagrant
abuse
of
power
on
their
part,
nor
a
gross
invasion
of
privacy.
In
R
v
Rao
(1984),
46
OR
(2d)
80
at
110-11,
Martin,
JA
stated
that
evidence
was
properly
excluded
where
“there
was
a
gross
abuse
of
power
and
a
flagrant
denial
.
.
.
of
constitutional
rights”.
Ewaschuk,
J
takes
a
similar
general
approach
in
Gibson
v
The
Queen
(1983),
37
CR
(3d)
175
at
187:
..
The
administration
of
justice
is
said
to
have
been
brought
into
disrepute
in
the
eyes
of
the
community
when
courts
who
administer
justice
admit
evidence
in
circumstances
where
the
state
has
grossly
abused
its
power
at
the
expense
of
individual
rights.
To
do
so
would
greatly
lower
the
court’s
esteem
in
the
eyes
of
right-thinking
members
of
the
community.
In
my
view
the
factors
that
predominate
in
this
case
are
the
nature
and
the
extent
of
the
illegalities,
the
good
faith
of
the
seizing
authorities
and
the
seriousness
of
the
offences
alleged.
The
nature
and
extent
of
the
illegalities
alleged
with
respect
to
the
May
13,
1975
search
and
seizure
have
already
been
discussed
in
some
detail.
I
am
satisfied
that
the
authorization
in
respect
of
the
premises
of
Gotfrid,
Perlmutter
and
Zeifman
was
defective.
Although
the
error
was
serious,
I
am
convinced
that
it
was
an
inadvertent,
probably
typographical
error.
Certainly
the
search
and
seizure
was
carried
out
as
if
the
authorization
was
properly
restricted.
The
leading
case
on
subsection
231(4)
of
the
Income
Tax
Act
at
the
time
was
Bathville
Corporations
Ltd
et
al
v
Atkinson
et
al,
[1964]
2
OR
17
(SC);
[1965]
1
OR
340
(CA),
which
affirmed
the
broad
and
sweeping
powers
of
the
section
and
which
stated
that
the
targets
of
the
investigation
need
not
be
named
in
the
authorization.
Baker
testified
that
he
had
been
trained
in
accordance
with
this
case
and
that
he
believed
he
was
acting
within
its
confines.
With
respect
to
the
scope
of
the
May
13,
1975
seizures,
I
have
already
stated
that,
except
with
respect
to
133
Richmond
Street
West,
I
do
not
accept
that
they
were
wholesale
seizures.
No
doubt
a
number
of
irrelevant
documents
were
taken,
however
they
were
not
shown
to
me
to
be
significant
relative
to
the
nature
and
scope
of
the
investigation.
The
documents
seized
at
133
Richmond
Street
West
were
largely
irrelevant
and
Whelton
testified
that
he
was
not
overly
concerned
with
the
parameters
of
the
search
at
that
location
because
Gotfrid
had
told
him
that
the
documents
were
ready
for
disposal.
While
I
agree
that
that
does
not
justify
the
seizure,
I
do
not
believe
that
the
seizing
officers
acted
in
bad
faith.
I
have
already
rejected
the
contention
that
the
search
and
seizure
of
the
documents
on
March
1,
1977
exceeded
its
authorized
scope.
The
good
faith
of
the
officers
is
readily
apparent
from
the
fact
that
several
boxes
of
documents
were
not
re-seized
at
that
time.
Counsel
for
the
applicants
submitted
that
a
litany
of
illegalities
had
been
committed
with
respect
to
this
second
group
of
documents.
I
agree
that
these
documents
were
twice
seized
unlawfully.
The
December
23,1976
seizure
of
documents
from
the
RCMP
pursuant
to
paragraph
231(1)(d)
of
the
Income
Tax
Act
was
illegal
and
was
quashed
by
Mahoney,
J.
Baker
testified,
however
that
they
had
every
reason
to
believe
that
such
a
seizure
was
lawful.
The
case
of
Royal
American
Shows
Inc
v
MNR,
[1976]
1
FC
269;
[1975]
CTC
557
at
that
time
sanctioned
such
a
seizure
and
had
not
yet
been
overturned
on
appeal.
Furthermore,
I
find
nothing
reprehensible
about
the
obviously
notional
“return”
that
preceded
the
March
1,
1977
seizure.
In
my
view
the
RCMP
warrants
pursuant
to
which
the
documents
were
initially
seized,
were
defective
for
failing
to
adequately
particularize
the
offence
alleged:
Bergeron
et
al
v
Deschamps
et
al
(1977).
33
CCC
(2d)
461
(SCC).
It
was
further
submitted
on
behalf
of
the
applicants
that
the
informal
access
by
the
DNR
to
the
documents
already
held
illegally
by
the
RCMP
was
illegal
as
no
resort
was
made
to
subsection
446(5)
of
the
Criminal
Code.
I
am
not,
however,
convinced
that
this
section
is
restrictive
rather
than
permissive.
In
any
event,
it
seems
to
me
that
the
nature
and
extent
of
the
illegalities
alleged
are
not
significant
relative
to
the
power
under
the
statute
and
to
the
broad
scope
of
the
seizure.
I
accept
the
submission
that
the
officers
at
all
times
acted
in
good
faith
and
in
accordance
with
the
judicial
interpretation
of
their
powers
at
the
time.
Had
I
accepted
all
of
the
submissions
of
the
applicants
with
respect
to
the
pre-Charter
illegalities
(apart
perhaps
from
the
allegation
that
the
seizures
were
wholesale),
I
would
nonetheless
have
held
that
the
administration
of
justice
would
not
be
brought
into
disrepute
by
the
admission
of
the
evidence
in
view
of
the
fact
that
no
constitutional
rights
were
infringed
and
in
view
of
the
seriousness
of
the
offences
alleged.
Tax
evasion
is
by
nature
a
serious
fraud
on
the
public
purse.
The
success
of
a
self-assessment
system,
depends
in
my
view
upon
the
public’s
belief
that
everyone
is
paying
their
share
of
taxes.
Mr
Olsson,
for
the
Crown,
stated
that
the
allegations
in
this
case
are
as
large
and
serious
as
any
ever
prosecuted
in
this
country,
the
features
of
which
include
the
alteration
of
documents,
the
co-opting
of
business
partners
into
the
scheme,
the
misleading
of
a
witness
with
respect
to
her
affidavit
and
the
complicated
movement
of
moneys
offshore.
Mr
Olsson
contended
that
in
these
circumstances,
the
exclusion
of
the
evidence
would
bring
the
administration
of
justice
into
disrepute.
I
agree.
The
Crown
should
have
the
right
to
put
forward
its
case
on
behalf
of
the
public
and
have
the
matter
tried
on
its
merits.
IV.
The
Return
of
Documents
under
subsection
24(1
)
of
the
Charter
My
decision
under
subsection
24(2)
of
the
Charter
does
not
fully
determine
the
matter.
In
the
alternative,
the
applicants
apply
for
the
return
of
the
documents
seized
pursuant
to
subsection
24(1)
of
the
Charter.
Subsection
24(1)
requires
that
the
applicants’
“rights
or
freedoms,
as
guaranteed
by
this
Charter,
have
been
infringed
or
denied”.
In
the
absence
of
authority
I
would
have
had
serious
doubts
that
any
Charter
rights
could
be
infringed
in
a
pre-Charter
search
and
seizure
without
giving
section
8
retrospective
effect.
However,
the
Ontario
Court
of
Appeal
decision
in
Re
Chapman
and
The
Queen
(1984),
46
OR
(2d)
65
makes
it
clear
that
subsection
24(1)
can
be
resorted
to
with
respect
to
an
illegal
search
and
seizure
that
occurred
prior
to
the
enactment
of
the
Charter.
In
that
case,
the
Court
considered
the
jurisdiction
to
order
the
return
of
objects
seized
pursuant
to
a
search
warrant
which
was
defective.
Associate
Chief
Justice
MacKinnon,
speaking
for
the
Court,
stated
at
72:
It
is
true,
in
the
instant
case,
that
the
article
in
issue
was
seized
prior
to
the
enactment
of
the
Charter.
However,
as
the
Crown
seeks
to
use
it
now
as
evidence,
the
invocation
of
ss.
8
and
24,
in
light
of
all
the
circumstances,
does
not
give
the
Charter
or
the
sections
retrospective
effect.
To
consider,
in
relation
to
s.
24,
the
circumstances
surrounding
the
execution
of
the
search
warrant,
and
the
subsequent
condemned
activities
cited
by
the
motions
court
judge
which
took
place
after
the
enactment
of
the
Charter,
is
not,
in
my
view,
to
give
retrospective
effect
to
the
Charter.
The
order
made
by
Reid,
J
could
be
considered
to
have
been
made
under
s.
24(1)
although
his
inherent
jurisdiction
to
order
the
return
of
the
article
has
not
been
taken
away
by
the
Charter.
Under
either
approach,
he
had
the
grounds
and
the
power
to
make
the
order
he
did.
In
light
of
Re
Chapman
and
The
Queen,
supra,
subsection
24(1)
and
section
8
may
be
invoked
with
respect
to
an
illegal
search
and
seizure
that
was
carried
out
prior
to
the
proclamation
of
the
Charter.
I
see
no
reason,
however,
to
extend
the
application
of
subsection
24(1)
to
a
pre-Charter
search
and
seizure
which
was
lawful
at
the
time
it
was
carried
out.
In
my
view,
to
apply
section
24
to
a
pre-Charter
search
and
seizure
merely
because
it
was
carried
out
pursuant
to
a
legislative
authority
which
now
contravenes
section
8
would
be
to
clothe
the
section
with
retrospective
effect:
contra,
Blackwoods
Beverages
Ltd
et
al
v
The
Queen
et
al,
unreported,
Manitoba
Court
of
Appeal,
released
November
20,
1984.
Accordingly,
the
remedies
in
subsection
24(1)
are
applicable
in
relation
to
the
articles
unlawfully
seized.
However,
with
respect
to
the
lawful
seizures
effected
prior
to
the
enactment
of
the
Charter,
the
applicants’
rights
or
freedoms,
as
guaranteed
by
the
Charter
have
not
been
infringed
or
denied.
Prior
to
the
enactment
of
the
Charter
the
prevailing
view
was
that
even
where
a
warrant
was
quashed,
the
court's
discretion
to
return
material
seized
under
the
warrant
should
be
exercised
in
favour
of
leaving
the
items
seized
with
the
Crown
where
it
required
the
articles
for
evidence
in
a
criminal
proceeding:
Model
Power
v
R
(1981),
21
CR
(3d)
195
(Ont
CA).
As
MacKinnon,
ACJO
stated
in
Re
Chapman
and
The
Queen,
supra,
with
the
enactment
of
the
Charter
the
return
of
documents
could
be
sought
under
subsection
24(1)
of
the
Charter
rather
than
pursuant
to
a
superior
court's
inherent
jurisdiction
to
order
return
when
it
quashes
a
warrant.
Under
the
Charter,
it
would
seem
that
the
discretion
is
more
heavily
weighted
in
favour
of
return
and
the
onus
is
on
the
Crown
to
show
compelling
grounds
for
the
retention
of
articles
seized
in
contravention
of
a
constitutional
right:
See
Re
Weigel
and
The
Queen
(1983),
7
CCC
(3d)
81
Sask
QB)
and
Re
Gillis
and
The
Queen
(1982),
1
CCC
(3d)
545
(Que
SC).
Re
Chapman
and
The
Queen,
supra,
and
Blackwoods
Beverages
Ltd,
supra,
Re
Weigel
and
The
Queen,
supra,and
Re
Gillis
and
The
Queen,
supra,
ordered
the
return
of
documents
notwithstanding
the
fact
that
they
may
have
been
required
as
evidence
in
the
criminal
proceedings.
The
applications
in
all
those
cases
were
made
prior
to
trial.
In
my
opinion
different
considerations
apply
when
the
application
is
brought
during
the
course
of
the
trial
and
the
documents
are
required
by
the
Crown
as
evidence
in
those
proceedings.
In
such
circumstances
any
remedy
granted
must
not
have
the
practical
effect
of
overruling
the
determination
already
made
in
relation
to
the
admissibility
of
the
evidence
under
subsection
24(2).
This
is
particularly
true
where
the
applicants
had
almost
ten
years
(three
of
which
followed
the
proclamation
of
the
Charter)
in
which
to
pursue
their
remedy.
The
power
to
order
the
return
of
documents
unlawfully
seized
is
a
discretionary
one.
In
my
view
it
is
inappropriate
to
return
documents
required
as
evidence
when
the
application
is
brought
at
trial.
In
R
v
Rowbotham
et
al,
an
unreported
judgment
of
the
Supreme
Court
of
Ontario,
released
November
2,
1984,
Ewaschuk,
J
refused
to
quash
a
defective
warrant
at
trial
and
refused
to
order
the
return
of
documents
seized
thereunder.
For
the
reasons
given
I
made
the
following
ruling
on
April
10,
1985.
The
application
under
subsection
24(2)
of
the
Charter
for
the
exclusion
of
evidence
is
denied.
The
application
under
subsection
24(1)
for
the
return
of
materials
seized
on
May
13,
1975
and
March
1,
1977
is
allowed
in
part:
I
direct
the
return
of
all
materials
seized
on
May
13,
1975
from
the
premises
of
Samuel
Gotfrid
QC,
including
133
Richmond
Street
West,
Zeifman
&
Co
and
Perlmutter,
Orenstein,
Giddens,
Newman
&
Co
except
for
the
materials
that
the
Crown
reasonably
foresees
it
will
require
as
evidence
at
trial.
The
Crown
shall
file
a
list
of
such
material,
together
with
any
copies
thereof,
to
be
returned.
Application
allowed
in
part.