Hill
J.:
Counsel
for
the
Attorney
General
of
Canada
has
made
application,
pursuant
to
s.462.48
of
the
Criminal
Code
of
Canada,
for
an
order
that
the
Deputy
Minister
of
National
Revenue
or
other
persons
specifically
designated
in
writing
by
the
Deputy
Minister
allow
a
peace
officer
access
to
taxpayer
records
in
the
possession
of
the
Department
of
National
Revenue.
In
this
ex
parte
application,
the
applicant
has
submitted
a
Notice
of
Application,
an
affidavit
by
a
peace
officer
specially
designated
by
the
Attorney
General
for
the
purpose,
and
a
draft
order.
On
the
basis
of
the
application
materials
filed,
I
am
not
satisfied
that
the
requested
order
should
issue.
In
this
regard,
a
number
of
observations
fall
to
be
made.
1.
There
is
an
inconsistency,
in
my
view,
between
paragraphs
8
and
217
of
the
Affidavit.
Paragraph
8,
by
its
title,
and
within
paragraph
8
itself,
refers
to
a
designated
substance
offence
under
investigation
involving
a
number
of
named
taxpayers.
In
paragraph
217,
according
to
the
title,
the
designated
substances
investigation
relates
to
different
criminal
charges
alleged
in
the
outstanding
informations
before
the
provincial
court
in
Brampton.
The
apparent
inconsistency
between
the
two
paragraphs
is
confusing.
2.
The
court
is
unable
to
find
a
statement
of
the
grounds
of
belief
for
believing
that
one
of
the
named
parties
in
the
designated
substance
offence
set
out
in
paragraph
8
is
in
fact
involved
in
the
commission
of
the
alleged
offence,
to
wit,
Kien
Tuong
Hua.
3.
With
regard
to
paragraph
10
of
the
affidavit,
it
is
unclear
what
the
affiant’s
source
of
belief
is
for
stating
that
the
identified
records
are
held
by
the
Minister
of
National
Revenue
respecting
the
targetted
taxpayers.
4.
There
is
a
lack
of
clarity
respecting
reference
to
Hua’s
intercepted
telephone
conversations
in
terms
of
the
location
of
some
of
the
relevant
telephone
calls.
In
some
paragraphs
(para.
50,
55-57,
146-147),
reference
is
made
to
“...the
business
line
at...”
while
in
other
paragraphs
(para.
89,
122,
128),
reference
is
made
to
“Hua’s
business
telephone
line”.
In
this
regard,
it
is
unclear
whether
the
same
location
is
being
identified
or
two
different
locations.
5.
In
paragraph
122,
it
is
unclear
whether
the
reference
is
meant
to
be
to
an
“unknown”
or
“known”
male.
6.
In
paragraphs
218,
223
and
224,
it
is
unclear
who
“Linda”
is
in
terms
of
the
narrative
to
that
point.
Overall,
it
is
unclear
as
to
why
the
affiant
links
the
woman
identified
as
Linda
to
Tu
Nga
Hua.
7.
There
are
varying
spellings
for
the
surname.
Truong
throughout
the
affidavit.
The
name
is
spelled
at
least
three
different
ways
including
Truong,
Troung
and
Tuong.
It
is
not
apparent
whether
this
is
a
typographical
problem
or
whether
the
discrete
spellings
are
deliberate.
8.
With
respect
to
paragraphs
219
and
243,
it
is
unclear
whether
Const.
Poscente
has
direct
knowledge
on
account
of
being
present
at
the
search
described.
9.
On
reading
paragraphs
230
and
231,
it
is
unclear
whether
the
relevant
bills
were
scanned
in
1996
or
1998.
10.
With
respect
to
paragraph
225,
the
footnote
7
reference
is
missing
from
the
bottom
of
the
relevant
page.
11.
There
is
no
source
set
out
for
the
facts
stated
in
paragraph
242.
12.
It
is
unclear
what
inference
is
to
be
drawn
from
paragraphs
240
and
241
and
in
turn
from
the
supporting
Exhibits
F
and
G.
While
a
representative
sample
of
most
of
the
bills
was
printed
in
1994,
the
materials
suggest
that
the
1994
printed
bills
were
shipped
to
various
cities
in
various
years,
including
1994,
1995,
1996,
1997
and
1998.
The
affiant
does
not
state
that
the
majority
of
the
bills
were
shipped
for
public
use
in
1994.
The
force
of
the
conclusions
advanced
by
the
affiant
is
unclear.
13.
There
are
no
grounds
of
belief
to
substantiate
seizure
of
the
taxpayers’
records
as
far
back
as
1988,
especially
having
regard
to
the
stated
time
period
in
the
designated
substance
offence.
14.
With
respect
to
some
paragraphs
there
appear
to
be
typographical
errors,
for
example
in
paragraph
261,
it
would
appear
that
the
number
1999
should
read
1998.
It
may
be
that
counsel
for
the
applicant,
through
submissions,
will
be
able
to
point
to
material
in
the
existing
affidavit
which
satisfies
the
apparent
omissions
identified
in
these
reasons.
In
the
alternative,
it
may
be
the
case
that
the
applicant
will
make
a
successive
application
having
cured
some
of
the
defects
in
the
present
application.
As
I
stated
in
Criminal
Code,
Re
(October
24,
1997),
Hill
J
.
(Ont.
Gen.
Div.)
at
para.
13:
I
think
it
important
to
state
that
the
role
of
the
court,
in
those
cases
where
an
application
is
dismissed,
is
to
provide
those
reasons
which
animated
the
court’s
decision.
Such
reasons
or
observations
may
have
the
incidental
effect
of
the
authorities
retooling
a
failed
application
in
order
to
make
a
successive
application
to
the
court
upon
appropriate
material.
Although
this
may
be
an
incidental
effect
of
the
delivery
of
reasons
for
judgment
by
the
court,
it
is
important
to
understand
that
the
court
is
not
to
be
co-opted
into
partnership
with
the
government
in
the
drafting
of
further
and
better
materials.
That
approach
oversteps
the
confines
of
judicial
neutrality:
Regina
v.
Gray
(1993),
81
C.C.C.
(3d)
174
(Man.
C.A.)
at
179-184
per
Scott
C.J.M.:
Regina
v.
Howe
(1994),
52
B.C.A.C.
271
(C.A.)
at
para.
8,
12-13,
17,
20-25
per
Cumming
J.A.
and
at
para
37-39
per
Prowse
J.A.
The
present
application
is
dismissed.
Application
dismissed.
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