Potts,
J
[ORALLY]:—This
is
an
application
for
an
order
quashing
three
search
warrants
and
requiring
the
return
of
all
documents
and
materials
of
what
soever
kind
seized
pursuant
to
the
warrants,
all
copies
made
of
the
documents
and
materials
and
for
delivery
up
to
the
Court
of
any
notes
of,
summaries
of
or
any
record
whatever
made
of
the
documents
and
material
or
any
of
them
and
an
injunction
restraining
the
respondent,
its
servants,
agents
or
anyone
acting
on
her
behalf
from
in
any
way
examining
or
copying
the
documents
and
materials
seized
pursuant
to
the
said
warrants
pending
the
final
disposition
of
this
proceeding.
The
first
issue
is
the
contention
that
the
provisions
of
section
443
of
the
Criminal
Code,
RSC
1970,
c-39,
as
amended
are
not
available
for
the
purpose
of
authorizing
a
warrant
to
search
in
respect
of
alleged
offences
committed
pursuant
to
the
provisions
of
the
Income
Tax
Act,
SC
1970-71-72,
c.
63,
as
amended,
because
the
latter
statute
provides
its
own
code
in
respect
of
warrants
to
search
for
offences
under
that
statute
(subsection
231(4)).
The
authority
for
that
proposition
is
subsection
27(2)
of
the
Interpretation
Act,
RSC
1970,
c
I-23
which
reads:
(2)
All
the
provisions
of
the
Criminal
Code
relating
to
indictable
offences
apply
to
indictable
offences
created
by
an
enactment,
and
all
the
provisions
of
the
Criminal
Code
relating
to
summary
conviction
offences
apply
to
all
other
offences
created
by
an
enactment,
except
to
the
extent
that
the
enactment
otherwise
provides.
In
MNR
et
al
v
Kruger
Inc
et
al
[1984]
CTC
506;
84
DTC
6478
(FCA)
Pratte,
J
of
the
Federal
Court
of
Appeal
stated
at
512
(6483
DTC):
In
my
view,
that
subsection
[231(4)]
violates
section
8
of
the
Constitution
Act,
1982
in
that
it
contravenes
the
right
of
the
taxpayer
“to
be
secure
against
unreasonable
search
or
seizure.”
In
the
case
of
Vespoli
et
al
v
The
Queen
et
al,
[1984]
CTC
519;
84
DTC
6489
(FCA),
Pratte,
J
again
referred
to
the
issue
where
he
stated
at
521
(6490
DTC):
The
first
issue
raised
by
this
appeal,
therefore,
is
whether
the
seizures
were
validly
made.
That
question
must,
in
my
view,
be
answered
in
the
appellants’
favour.
In
my
reasons
for
judgment
in
the
case
of
The
Minister
of
National
Revenue
v
Kruger
Inc
(File
No
Al
153-83),
which
reasons
will
be
filed
at
the
same
time
as
these,
I
express
the
view
that
subsection
231(4)
of
the
Income
Tax
Act
contravenes
section
8
of
the
Constitution
Act,
1982
in
that
it
empowers
the
Minister,
when
he
has
reasons
to
believe
that
a
taxpayer
committed
an
offence
under
the
Income
Tax
Act,
to
authorize
a
search
for
documents
and
things
that
may
afford
evidence
not
only
of
that
offence
but,
also,
of
the
violation
of
any
other
provision
of
the
Income
Tax
Act.
I
need
not
repeat
here
what
I
say
in
those
reasons.
Counsel
for
the
applicant
argued
that
subsection
231(4)
does
not
contravene
the
Charter
in
so
far
as
it
gives
the
Minister,
when
he
has
valid
grounds
for
believing
that
offences
have
been
committed
by
a
taxpayer,
the
power
to
authorize
a
search
and
seizure
in
respect
of
that
offence.
Indeed
Justice
Pratte
in
the
Kruger
case
said
at
512
(6483
DTC):
It
is
not
necessary,
in
this
case,
to
lay
down
the
various
conditions
that
must
be
met
in
order
for
a
search
or
seizure
to
be
reasonable.
It
is
common
ground
that
subsection
231(4)
does
not
contravene
the
Charter
in
so
far
as
it
gives
the
Minister,
when
he
has
valid
grounds
for
believing
that
an
offence
has
been
commited
by
a
taxpayer,
the
power
to
authorize
a
search
and
seizure
in
respect
of
that
offence.
What
is
challenged
is
the
constitutionality
of
that
subsection
in
so
far
as
it
confers
on
the
Minister,
when
he
has
grounds
to
believe
that
one
particular
offence
has
been
committed,
the
power
to
authorize
a
general
search
and
seizure
relating
to
the
violation
of
any
of
the
provisions
of
the
Income
Tax
Act
or
the
Regulations.
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
or
seizure.”
With
great
respect
to
the
learned
judge,
in
my
view,
his
conclusions
contradict
his
reasons
and
that
he
ought
to
have
found
that
subsection
231(4)
violates
section
8
of
the
Constitution
Act,
1982
in
so
far
as
it
confers
on
the
Minister,
when
he
has
grounds
to
believe
that
one
particular
offence
has
been
committed,
the
power
to
authorize
a
general
search
and
seizure
relating
to
the
violation
of
any
of
the
provisions
of
the
Income
Tax
Act
or
of
the
Regulations.
I
am
reinforced
in
this
conclusion
by
reference
to
Regina
v
Rao
(1984),
12
CCC
(3d)
97,
(Ont
CA)
where
on
125
Martin,
J
A,
in
dealing
with
paragraph
10(
l)(a)
of
the
Narcotic
Control
Act
stated:
Section
10(1)(a)
does
not,
on
its
face,
necessarily
clash
with
s.
8
of
the
Charter
although
in
some
circumstances
a
warrantless
search
authorized
by
that
subsection
may,
in
fact,
infringe
the
constitutional
requirement
of
reasonableness
secured
by
s
8
of
the
Charter,
depending
upon
the
circumstances
surrounding
the
particular
search.
The
statute
is
inoperative
to
the
extent
that
it
authorizes
an
unreasonable
search.
Section
52(1)
of
the
Constitution
Act,
1982
reads:
52(1)
The
Constitution
of
Canada
is
the
supreme
law
of
Canada,
and
any
law
that
is
inconsistent
with
the
provisions
of
the
Constitution
is,
to
the
extent
of
the
inconsistency
of
no
force
or
effect.
(Emphasis
added.)
The
whole
basis
of
the
decision
of
Pratte,
J
in
the
Kruger
case
was
that
he
found
those
provisions
of
subsection
231(4)
which
authorized
a
general
search
and
seizure
as
being
unreasonable.
As
he
indicated
in
his
earlier
reasoning,
it
would
have
been
far
more
appropriate
to
declare
that
the
provisions
of
subsection
231(4)
contravened
section
8
of
the
Constitution
Act,
1982
only
to
the
extent
that
they
were
unreasonable.
Accordingly,
I
find
subsection
231(4)
does
not
violate
section
8
of
the
Constitution
Act,
1982
in
so
far
as
it
gives
the
Minister,
when
he
has
valid
grounds
for
believing
that
an
offence
has
been
committed
by
a
taxpayer,
the
power
to
authorize
a
search
and
seizure
in
respect
of
that
offence.
Accordingly,
an
order
will
go
as
asked
in
paragraph
1
of
the
applicant’s
memorandum
of
fact
and
law,
viz.
(a)
An
order
quashing
the
three
search
warrants
issued
herein;
(b)
An
order
requiring
the
return
(i)
of
all
documents
and
material
of
whatsoever
kind
seized
pursuant
to
the
warrants;
(ii)
of
all
copies
made
of
any
of
the
documents
and
material,
and
(iii)
for
delivery
up
to
the
Court
of
any
notes
of,
summaries
of
or
any
record
whatever
made
of
the
said
documents
and
material
or
any
of
them;
(c)
An
injunction
restraining
the
respondent,
its
servants,
agents
or
anyone
acting
on
its
behalf
from
in
any
way
examining
or
copying
the
documents
and
material
seized
pursuant
to
the
said
warrants
pending
the
final
disposition
of
this
proceeding.
The
applicants
are
entitled
to
the
costs
of
this
application.
Pending
any
appeal
of
this
decision
and
the
final
judicial
disposition
of
the
matter,
all
documents
and
material
seized
shall
be
delivered
into
the
custody
of
the
Administrator
of
the
Supreme
Court
of
Ontario,
Osgoode
Hall,
Toronto,
Ontario
unless
counsel
for
both
parties
agree
to
a
more
convenient
disposal.
Application
granted.