Dubé
J:—Upon
a
motion
made
by
counsel
on
behalf
of
the
applicants
to
the
presiding
judge
of
this
Honourable
Court
for:
(1)
An
Order
pursuant
to
Rules
320
and
321
abridging
the
time
for
filing
service
of
this
motion;
and
(2)
An
Order
pursuant
to
section
18
of
the
Federal
Court
Act
and
section
24
of
the
Constitution
Act,
1982:
(a)
quashing
the
authorization
pursuant
to
subsection
231(4)
of
the
Income
Tax
Act,
(SC
1970-71-72),
c
63,
as
amended)
dated
July
8,
1983,
signed
by
respondent
Gérard
Leblond
authorizing
search
and
seizure
of
the
premises
described
therein;
ON
THE
GROUNDS
THAT
(i)
Subsection
231(4)
of
the
Income
Tax
Act
is
inconsistent
with
section
8
of
the
Constitution
Act,
1982
and
of
no
force
or
effect;
(ii)
The
said
authorization
is
inconsistent
with
section
8
of
the
Constitution
Act,
1982
and
of
no
force
or
effect;
(iii)
The
said
authorization
is
illegal,
irregular,
null
and
void;
and
(iv)
The
search,
seizure,
removal
and
possession
of
the
seized
effects
as
executed
by
the
respondents
and/or
their
representatives
is
unreasonable,
illegal,
irregular,
null
and
void.
(b)
AND
CONSEQUENTLY
ordering
the
return
to
applicants
and
to
all
of
the
mis-en-cause
described
in
the
said
authorization
all
seized
ef-
fects,
as
well
as
any
copies
and
extracts
thereof,
removed
pursuant
to
said
authorization,
and
to
place
in
sealed
envelopes
or
containers
any
notes,
précis
or
other
descriptions
of
the
effects
taken
or
seized
by
the
respondents
or
their
representatives,
without
copies
thereof
being
kept
by
respondents,
and
deliver
these
into
the
custody
of
the
District
Administrator
of
the
Federal
Court
at
the
Palais
de
Justice,
1
Notre
Dame
Street,
Montreal,
Quebec.
(3)
Such
other
order
as
may
seem
just
in
the
circumstances
including
the
order
to
restrain
respondents
from
having
access
to
or
using
the
seized
effects
pending
an
appeal
by
respondents
from
a
decision
of
this
Honourable
Court
maintaining
applicants’
motion.
Reasons
for
Order
The
applicants
seek
an
Order
from
this
Court
under
section
18
of
the
Federal
Court
Act,
quashing
the
authorization
pursuant
to
subsection
231
(4)
of
the
Income
Tax
Act
for
search
and
seizure
of
the
applicants’
documents
on
the
grounds
that
the
subsection
and
the
authorization
are
inconsistent
with
section
8
of
the
Constitution
Act,
1982.
The
two
provisions
read
as
follows:
231(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.
8.
Everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure.
It
is
common
ground
that
the
Minister
had
reasonable
and
probable
grounds
to
believe
that
violations
of
the
Act,
in
relation
with
the
residency
of
the
applicants,
had
been
committed,
but
the
Minister’s
application,
the
authorization
and
the
approval
of
the
judge
of
the
Quebec
Superior
Court
were
for
“any
violation”
of
the
Act
and
the
Regulations.
Counsel
for
the
applicants
made
it
quite
clear
at
the
outset
that
he
is
attacking
the
authorization
(signed
by
Gérard
Leblond,
Director,
Special
Investigations
Division)
and
not
the
approval
of
the
judge.
Such
an
authorization
is
an
administrative
and
executive
decision
not
required
to
be
made
on
a
judicial
or
quasi-judicial
basis
(MNR
v
Coopers
and
Lybrand,
92
DLR
(3d)
I).
There
is,
however,
a
duty
on
the
part
of
the
Minister
to
act
fairly
(Martineau
v
Matsqui
Institution,
[1980]
1
SCR
602).
Counsel
for
both
parties
canvassed
the
leading
decisions
on
search
and
seizure,
most
of
which
dating
before
the
proclamation
of
the
Constitution
Act,
1982.
In
my
view,
the
authorization
under
attack
violates
section
8
of
the
Constitution
Act,
in
that
it
constitutes
unreasonable
search
and
seizure.
I
find
it
unreasonable
because
it
is
not
limited
to
the
particular
violations
allegedly
committed.
It
is
a
blanket
order
covering
the
violation
of
any
provision
of
the
Act.
In
my
view,
such
a
fishing
expedition
is
not
necessary
and
ought
not
to
be
allowed.
It
constitutes
unreasonable
search
and
seizure.*
I
find
sustenance
for
my
view
in
the
recent
decision
of
my
brother
Collier,
J
in
Thomson
Newspapers
v
Lawson
(T-1550-83)
released
July
6,
1983,
dealing
with
a
parallel
authorization
under
the
Combines
Investigation
Act.
ORDER
1.
The
authorization
of
Gérard
Leblond
dated
July
8,
1983
is
quashed.
2.
The
costs
of
this
motion
go
to
the
applicants.
3.
Pending
any
appeal
of
this
decision,
all
documents
seized
shall
be
delivered
into
the
custody
of
the
District
Administrator
of
the
Federal
Court,
Palais
de
Justice,
Montréal,
Québec,
unless
counsel
for
both
parties
agree
to
a
more
convenient
disposal
of
the
documents
pending
the
final
judicial
disposition
of
the
matter.
Email this Content