Heald,
J:—This
is
a
section
28
application
on
behalf
of
Coopers
&
Lybrand,
Chartered
Accountants,
to
review
and
set
aside
the
decision
or
order
of
the
Director
General,
Special
Investigations
Directorate,
Department
of
National
Revenue,
Taxation,
and
His
Honour
Judge
Carl
Zalev,
Judge
of
the
County
Court
of
the
County
of
Essex
dated
at
Windsor,
August
2:
1977,
authorizing
G
W
Atkinson
and
others
mentioned
in
the
said
document
entitled
Authorization
to
Enter
and
Search
applicant’s
offices
and
storage
facilities
in
the
City
of
Windsor
for
documents,
books.
records,
papers
or
things
pertaining
or
relating
to
Collavino
Brothers
Construction
Company
Limited
(hereafter
Collavino)
that
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
to
retain
them
until
they
are
produced
in
any
court
proceeding.
The
authority
for
the
making
of
the
order
above
referred
to.
is
said
to
be
subsections
231(4)
and
(5)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
which
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.
(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
authorization
in
question
also
relates
to
other
documentation
in
the
possession
and
control
of
persons
other
than
the
applicant
and
in
places
other
than
the
applicant’s
premises.
However,
this
section
28
application
is
restricted
to
the
authorization
in
so
far
only
as
it
relates
to
documentation
in
the
possession
of
the
applicant
in
the
places
therein
specified
and
only
to
the
extent
that
the
authorization
applies
to
the
applicant.
Applicant’s
main
complaint
concerning
subject
authorization
is
that
it
contains
no
restriction
or
limitation
whatsoever
as
to
the
specific
nature
of
the
documents,
the
time
span
covered
by
the
documentation,
the
relationship
of
the
documentation
to
any
particular
transaction
or
transactions,
or
the
indication
of
any
specific
violation
or
violations
of
the
Act
or
regulations.
The
material
filed
in
support
of
the
application
for
the
authorization
is
contained
in
three
affidavits
which
establish
that
the
applicant
is
a
firm
of
chartered
accountants
and,
as
such,
acted
as
accountants
for
Collavino
and
prepared
that
company’s
tax
returns
for
the
taxation
years
1974
and
1975.
It
was
also
established
that
the
applicant
has
in
its
possession
working
papers
and
other
documents
relating
generally
to
the
affairs
of
Collavino
and
not
restricted
to
the
years
in
question.
There
is
no
suggestion
in
the
evidence
that
this
applicant
was
party
to
any
violation
of
the
Income
Tax
Act
or
regulations
nor
does
the
evidence
establish
the
relationship
of
Collavino
to
any
transaction
that
might
constitute
a
violation
of
the
Act
or
regulations
except
with
respect
to
construction
contracts
involving
Kendan
Manufacturing
Limited
(hereafter
Kendan)
and
one
Dan
Bryan,
the
president,
general
manager
and
owner
of
one-third
of
the
common
shares
of
Kendan.
While
the
applicant
does
not
agree
that
the
evidence
establishes
“reasonable
and
probable
grounds’’
for
believing
that
there
was
participation
by
Collavino
in
the
Kendan
and
Bryan
transactions
amounting
to
any
offence
whatsoever
by
Collavino.
the
applicant
attacks
subject
authorization:
on
the
wider
ground
that
if
it
extended
to
documents
in
the
applicant’s
possession
at
all.
it
should
have
been
restricted
to
documentation
pertaining
to
the
dealings
between
Collavino
on
the
one
hand
and
Kendan
and
Bryan
on
the
other.
Applicant
says
that
the
authorization
is
defective
and
should
be
quashed
in
so
far
as
it
relates
to
this
applicant
because
it
is
completely
unrestricted
in
its
application
to
the
Collavino
documentation
concerning
times,
category,
nature,
content
and
subject
matter.
An
analysis
of
the
words
used
in
subsection
231(4)
of
the
Act
(supra)
has
convinced
me
that
there
is
substance
in
applicant’s
argument.
The
opening
words
of
subsection
(4)
require
the
Minister
to
have
reasonable
and
probable
grounds
for
believing
that
‘‘a
violation
of
this
Act
.
.
.
has
been
committed
or
is
likely
to
be
committed
.
.
.”
(italics
are
mine).
The
closing
words
which
authorize
the
seizing
and
taking
away
of
documents,
etc
restrict
such
authorization
to
documents.
etc
‘that
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
.
.
.’’
(italics
are
mine).
It
seems
clear
to
me
that
‘‘the
violation’’
referred
to
in
the
latter
portion
of
subsection
(4)
has
reference
to
“a
violation’’
specified
in
the
opening
words
of
the
Subsection.
Read
in
this
fashion,
the
subsection
clearly
restricts
the
authority
to
seize.
and
to
take
away,
etc.
to
the
violation
in
respect
of
which
the
Minister
has
reasonable
and
probable
grounds
and
in
respect
of
which
he
is
required,
by
subsection
(5),
to
have
evidence,
on
oath,
which
establishes
(italics
are
mine)
the
facts
upon
which
the
application
is
based.
Thus,
on
the
facts
here
present,
since
the
evidence
filed
by
the
Minister
implicates
those
documents,
etc
of
Collavino
relating
only
to
the
Kendan
and
Bryan
transactions,
it
follows
that
the
authorization
to
seize
and
take
away;
etc
should
likewise
be
restricted
to
those
same
documents.
I
agree
with
applicant’s
counsel
that
it
would
be
ludicrous
and
absurd
to
interpret
subsection
231(4)
in
such
a
way
as
to
enable
the
Taxation
Department
to
seize
and
take
away
every
scrap
of
paper
in
applicant’s
custody
relating
to
Collavino
from
“the
year
1919
onward”
as
counsel
put
it,
and
covering
every
house
contract
and
every
building
contract
involving
Collavino
and
myriad
owners
through
the
years,
based
on
evidence
of
possible
violations
of
the
Act
in
two
taxation
years
and
for
two
building
owners.
To
read
that
subsection
as
contended
by
counsel
for
the
respondent,
it
is
necessary,
in
my
view,
to
read
into
the
subsection
the
word
“any”
before
the
word
“violation”
in
the
closing
words
of
the
subsection.
Thus,
the
subsection
would
have
to
read
“that
may
afford
evidence
as
to
any
violation
of
any
provision
of
this
Act
.
.
.”.
As
a
result,
it
can
be
seen
that
the
word
“the”
has
to
be
deleted
and
the
word
“any”
substituted
therefor.
However,
giving
the
words
used
their
grammatical
and
ordinary
sense,
and
without
having
to
add
to
or
delete
from
the
words
used
by
Parliament,
the
subsection
must
necessarily
be
interpreted
in
the
manner
urged
upon
us
by
applicant’s
counsel.
It
is
my
further
view
that
in
the
event
of
there
being
a
doubt
as
to
the
construction
of
a
taxing
statute,
the
taxpayer
is
to
be
given
the
benefit
of
that
doubt
on
the
ground
that
Parliament
may,
in
such
circumstances,
be
presumed
not
to
have
intended
to
interfere
with
private
rights.*
While
I
have
no
such
doubt
in
the
instant
case,
for
the
reasons
above
stated,
were
there
such
a
doubt
in
my
mind,
I
would
resolve
it
in
favour
of
the
taxpayer
for
the
reasons
given
by
Dr
Driedger
and
referred
to
supra.
Respondent’s
counsel
relied
on
the
case
of
The
Canadian
Bank
of
Commerce
v
Attorney
General
of
Canada,
[1962]
SCR
729;
62
DTC
1236.
In.
my
view,
that
case
is
clearly
distinguishable
from
the
present
case.
First
of
all,
the
section
of
the
Income
Tax
Act
there
under
review
was
section
126
of
the
Act
which
is
the
predecessor
to
the
present
Act.
Section
126
empowered
the
Minister
to
search
“for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act”.
It
seems
to
me
that
such
a
purpose
is
much
broader
than
a
belief
‘that
a
violation
has
been
or
is
likely
to
be
committed”,
the
wording
used
in
the
present
section.
There
are
other
significant
differences
between
section
126
and
subsection
231(4)
of
the
present
Act.
The
present
subsection
231(4)
requires
the
Minister
to
have
reasonable
and
probable
grounds
for
his
belief
in
the
violation
and
subsection
(5)
requires
sworn
evidence
of
the
facts
upon
which
the
belief
is
based.
It
seems
to
me
that
subsections
231(4)
and
(5)
clearly
signify
the
recognition
by
Parliament
that
the
powers
conferred
under
subsection
231(4),
involving
as
they
do
serious
interference
with
the
common
law
rights
to
property
and
privacy.
must
be
carefully
circumscribed
and
have
built
into
them
concomitant
safeguards.
These
significant
differences
between
the
relevant
sections
of
the
governing
Income
Tax
Act
make
the
Canadian
Bank
of
Commerce
case
decision
(supra),
in
my
opinion,
inapplicable
to
the
case
at
bar.
Accordingly,
and
for
the
foregoing
reasons,
I.
-would
allow
this
section
28
application,
set
aside
the
order
of
the
Director
General,
Special
Investigations
Directorate,
Department
of
National
Revenue,
Taxation,
and
His
Honour
Judge
Carl
Zalev.
dated
August
2,
1977
and
refer
the
matter
back
to
the
said
Director
General
and
Judge
Zalev
for
the
issuance
of
a
new
authorization
restricting
the
right
to
seize
documents,
books,
records,
papers
or
things
to
those
in
the
possession
of
the
applicant
which
are
related
to
the
dealings
between
Collavino,
Dan
Bryan
and
Kendan,
concerning
the
construction
of
the
Bryan
residence
and
the
construction
of
the
addition
to
Kendan’s
plant.
Urie,
J
(concurring):—This
is
a
section
28
application
to
review
and
set
aside
an
Authorization
to
Enter
and
Search
issued
pursuant
to
subsection
231(4)
of
the
Income
Tax
Act
by
the
Director
General,
Special
Investigations
Directorate
of
the
Department
of
National
Revenue,
Taxation,
on
June
28,
1977
and
approved
by
His
Honour
Judge
Zalev
of
the
County
Court
of
the
County
of
Essex
on
August
2,
1977.
The
authorization
in
question
included
in
it
the
right
to
enter
and
search
the
premises
of
the
applicant.
Briefly
the
salient
facts
disclosed
in
the
affidavit
evidence
filed
in
support
of
the
motion
for
approval
of
the
authorization
are
these.
The
applicant
is
a
firm
of
chartered
accountants
which
carries
on
the
practice
of
its
profession
at
two
locations
in
Windsor,
Ontario,
inter
alia.
Among
the
clients
of
the
applicant
firm
is
Collavino
Brothers
Construction
Company
Limited
(hereinafter
referred
to
as
Collavino
Brothers),
which
we
were
told
is
a
large
general
construction
firm,
with
its
business
premises
in
Windsor.
In
the
course
of
its
business
Collavino
Brothers
entered
into
a
signed
contract
for
the
construction
of
a
house
in
Windsor
for
one
Dan
Bryan
for
the
sum
of
$43,000
under
the
supervision
of
an
architect.
Cost
records
disclose,
it
was
deposed,
that
the
actual
costs
of
construction
of
the
house,
including
overhead,
was
$90,397.
The
actual
amount
‘paid
to
the
contractor
as
at
June
9,
1977,
the
date
on
which
one
of
the
affidavits
was
sworn,
was
$37,200.
Collavino
Brothers
also
constructed
an
addition
to
the
existing
plant
of
Kendan
Manufacturing
Limited
of
which
Dan
Bryan
now
is
apparently
president.
Total
billings
for
that
job
amounted
to
$364,500
of
which
$4,500
was
written
off
as
a
bad
debt.
The
records
of
Collavino
Brothers
disclose
that
the
accumulated
costs,
including
overhead,
for
the
plant
addition,
amounted
to
$226,827.
The
affidavit
of
John
William
Brown,
an
officer
of
the
Department
of
National
Revenue,
Taxation
at
the
Windsor
District
Taxation
office
sets
forth
in
more
detail.
the
above
facts
and
states
that
the
loss
to
Collavino
Brothers
on
the
construction
of
the
Bryan
house
was
$53,197
while
the
profit
on
the
addition
to
the
Kendan
plant
was
$133,173.
Paragraphs
12
to
18
inclusive
then
set
forth
the
basis
upon
which
the
respondent
sought
the
approval
of
the
Authorization
to
Enter
and
Search:
12.
I
annex
to
this
my
affidavit,
the
affidavit
of
David
Foy,
identified
as
Exhibit
“A”.
As
a
result
of
my
examination
of
the
said
Exhibit
“A”
and
as
a
result
of
my
enquiry,
I
have
reasonable
grounds
to
believe
and
do
believe
that
Collavino
Brothers
Construction
Company
Limited
and
Mario
Collavino
have
made
false
or
deceptive
entries
in
the
books
of
account
of
the
said
Collavino
Brothers
Construction
Company
Limited
by
including
in
the
billings
for
the
construction
of
the
addition
to
the
plant
of
Kendan
Manufacturing
Limited
an
approximate
amount
of
$53.197
as
being
a
portion
of
the
cost
of
the
residence
of
Dan
Bryan,
shareholder
of
Kendan
Manufacturing
Limited.
13.
As
a
result
of
my
examination
of
the
said
Exhibit
‘‘A’’,
and*
as
..a
result
of
my
inquiry,
I
have
reasonable
grounds
for
believing
and
do
believe
that
Collavino
Brothers
Construction
Company
Limited
has
committed
an
offence
under
section
239
of
the
Income
Tax
Act
and
Amendments
thereto
by
making
false
or
deceptive
entries
in
the
books
of
account
of
the
said
Collavino
Brothers
Construction
Company
Limited
in
the
course
of
the
years
1974
and
1975.
14.
I
annex
to
this
my
affidavit,
the
affidavit
of
Gregory
Atkinson,
identified
as
Exhibit
“B”.
As
a
result
of
my
examination
of
the
said
affidavit
and
as
a
result
of
my
enquiry,
I
have
reasonable
grounds
for
believing
and
do
believe
that
Kendan
Manufacturing
Limited
has
included
in
its
Fixed
Assets
Building
Account
the
cost
of
the
addition
to
its
plant
as
being
$360,000,
including
therein
the
approximate
$53,197
portion
of
the
cost
of
the.
residence
to
Dan
Bryan
as
shown
in
paragraph
10
of
this
my
affidavit.
Kendan
Manufacturing
Limited
claimed
Capital
Cost
Allowance
on
the
amount
of
$360.000,
thereby
improperly
claiming
Capital
Cost
Allowance
on
the
amount
of
$53,197
as
a
deduction
against
its
income
in
its
T2
return
of
income
for
the
1975
taxation
year:
15.
As
a
consequence
of
my
examination
of
the
T1
returns
of
income
of
Dan
Bryan
filed
for
the
years
1974
and
1975,
I
know
that
the
said
Dan
Bryan
has
not
reported
as
a
benefit
any
portion
of
the
$53,197
partial
cost
of
his
residence
paid
by
Kendan
Manufacturing
Limited
in
his
T1
returns
of
income
for
the
years
1974
and
1975.
16.
As
a
result
of
my
enquiry,
I
have
reasonable
grounds
for
believing
and
do
believe
that
Kendan
Manufacturing
Limited
and
Dan
Bryan
have
committed
an
offence
under
Section
239
of
the
Income
Tax
Act
and
Amendments
thereto
by
making
false
or
deceptive
statements
in
the
returns
of
income
of
the
said
Kendan
Manufacturing
Limited
for
the
taxation
years
1974
and
1975.
17.
Collavino
Brothers
Construction
Company
Limited
owns
an
office
and
building
shop
at
Walker
Road
and
Highway
401
wherein
it
is
known
that
business
records
and
papers
pertaining
to
the
operations
of
Collavino
Brothers
Construction
Company
Limited
for
the
taxation
years
1974
and
1975
are
located.
18.
Coopers
&
Lybrand,
500
Ouellette
Avenue,
Windsor,
Ontario,
Chartered
Accountants;
as
accountants
for
Collavino
Brothers
Construction
Company
Limited,
prepared
the
financial
statements
and
returns
of
income
of
the
said
Collavino
Brothers
Construction
Comapny
Limited
for
the
years
1974
and
1975
and
have
in
their
possession
working
papers
and
other
documents
relating
to
the
tax
affairs
of
the
said
Collavino
Brothers
Construction
Company
Limited.
The
relevant
portions
of
the
Authorization
to
Enter
and
Search
approved
by
Judge
Zalev
are
as
follows:
The
Director
General,
Special
Investigations
Directorate,
Department
of
National
Revenue,
Taxation,
hereby
authorizes
G
W
ATKINSON,
H
R
JANE,
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
business
premises
of
Collavino
Brothers
Construction
Company
Limited
at
R
R
Walker
Road
at
Highway
401,
Windsor,
Ontario.
(b)
The
business
premises
of
Kendan
Manufacturing
Limited
at
770
Division
Road,
Windsor,
Ontario.
(c)
The
private
residence
of
Dan
Bryan
at
3790
Huntington
Avenue,
Windsor,
Ontario.
for
documents,
books,
records,
papers
or
things
that
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
Coopers
&
Lybrand,
Chartered
Accountants,
and
all
storage
facilities
occupied
or
controlled
by
them
at
500
Ouellete
Avenue,
Windsor,
Ontario.
(e)
The
offices
of
Coopers
&
Lybrand,
Chartered
Accountants,
and
all
storage
facilities
occupied
or
controlled
by
them
at
201
Shepherd
Street
East,
Windsor,
Ontario.
GIVEN
under
my
hand
at
the
City
of
Ottawa;
Province
of
Ontario,
this
28th
day
of
June,
1977.
Director
General
Special
Investigations
Directorate
of
the
Department
of
National
Revenue,
Taxation.
After
having
considered
the
application
made
by
the
Director
General
of
Special
Investigations
based
on
the
affidavit
of
John
William
Brown,
I
hereby
approve
the
above
authorization,
which
approval
is
also
indicated
on
the
preceding
page
by
my
initials.
DATED
at
Windsor
this
2nd
day
of
August
1977.
“Carl
Zalev’’
CARL
ZALEV
Judge
of
the
County
Court
of
Essex.
The
authorization
was
issued
and
approved
pursuant
to
subsections
231(4)
and
(5)
of
the
Income
Tax
Act,
and
Regulation
900(5)
of
the
Income
Tax
Regulations:
231.
(4)
Search.—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)
'Evidence
in
support
of
application.—An
application
to
a
judge
under
subsection
(4)
shall
be
supported
by
evidence
on
oath
establishing
the
facts
upon
which
the
application
is
based.
900.
(5)
The
Director
General,
Special
Investigations
Directorate
of
the.
Department
of
National
Revenue,
Taxation,
and
any
official
holding
a
position
of
Director
in
that
Directorate,
may
exercise
the
powers
and
perform
the
duties
of
the
Minister
under
subsections
150(2),
231(2),
(3)
and
(4)
and
subsection
244(4)
of
the
Act.
While
there
is
nothing
in
the
evidence
before
us
to
indicate
what
was
seized
by
the
National
Revenue
officers
from
the
offices
of
Coopers
&
Lybrand,
we
were
advised
that
everything
in
the
possession
of
that
firm
relating
in
any
way
whatsoever
to
Collavino
Brothers
Construction
Company
Limited
was
seized
and
none
has
been
returned
although
the
applicant
has
been
given
access
to
it
on
occasion,
apparently
at
the
place
it
is
kept
by
the
Department
of
National
Revenue.
While
he
originally
took
the
position
that
there
was
no
evidence
before
Judge
Zalev
which
could
on
reasonable
and
probable
grounds
indicate
that
the
Collavino
Brothers
had
in
any
way
violated
any
provisions
of
the
Income
Tax
Act,
applicant’s
counsel
later
candidly
conceded
that
there
was
sufficient
evidence
to
warrant
the
entry
and
search
not
only
of
their
premises
but
also
those
of
the
applicant
firm
which
is,
of
course,
in
no
way
implicated
in
any
alleged
violation.
However,
in
his
view,
the
authorization
for
the
seizure
and
retention
should
have
been
limited
to
those
documents,
books,
records,
papers
and
things
relating
to
the
contracts
Collavino
Brothers
had
with
Kendan
Manufacturing
Limited
and
Dan
Bryan.
I
take
it
that
by
this
concession
he
agrees
that
there
were
reasonable
and
probable
grounds
upon
which
the
Director
General
could
have
concluded
that
a
violation
of
a
provision
of
the
Income
Tax
Act
may
have
occurred
whether
or
not
Collavino
Brothers
was
a
party
to
the
violation,
and
that
its
records
relating
to
the
two
contracts
might
be
relevant
in
determining
whether
or
not
there
was
in
fact
a
violation.
In
my
view,
counsel
was
correct
in
conceding
that
reasonable
and
probable
grounds
existed
for
believing
that
a
violation
of
the
Income
Tax
Act
had
been
committed.
There
was
ample
evidence
for
the
Director
General
and
the
learned
judge
so
concluding.
The
more
difficult
question
is
whether
or
not
the
authorization,
couched
in
the
broad
language
that
it
is,
is,
as
a
result,
defective.
I
am
of
the
opinion
that
the
question
must
be
determined
by
an
examination
of
the
historical
background
of.
search.
and
seizure
practice,
the
statutory
context
in
which
the
subsection
appears
and
the
plain
meaning
of
the
words
of
the
subsection
interpreted
as
they
must
be
in
their
historical
and
actual
context.
It
is
trite
to
say
that,
from
the
beginning,
it
has
been
recognized
that
the
issuance
of
a
warrant
to
search,
which
generally
speaking
has
been
empowered,
at
least
in
this
country,
by
statute,
is
an
extraordinary
remedy
which
is
repugnant
to
the
usual
right
that
an
individual
possesses
to
maintain
inviolate
his
own
property
and
the
property
of
others
which
may
be
in
his
lawful
possession.
The
courts
have,
thus,
been
zealous
in
seeking
to
ensure
that
the
statutory
power
of
entry,
search
and
seizure
is
not
abused
by
excesses
in
the
application
of
the
power
so
given.
Nowhere
has
that
zeal
been
more
apparent
than
in
the
case
of
a
warrant
directed
against
a
person
who
is
an
Owner
or
occupier
of
property
or
is
in
lawful
possession
of
goods,
documents
or
records
of
others
and
is,
in
relation
to
the
transaction
giving
rise
to
the
exercise
of
the
statutory
power,
an
innocent
third
party.*
While
the
bulk
of
the
jurisprudence
relates
to
entry,
search
and
seizures
in
respect
of
warrants
issued
pursuant
to
the
applicable
provisions
of
the
Criminal
Code.
there
seems
logically
to
be
no
reason
why
the
basic
principle
of
limiting,
the
ambit
of
seizure
in
strict
conformity
to
the
statutory
power
should
not
apply
in
respect
of
the
authorization
granted
pursuant
to
subsection
231(4)
of
the
Income
Tax
Act.
The
issue
to
be
decided
in
this
application
then
is
whether
or
not
all
the
material
seized
from
the
offices
of
the
applicant
should
have
been
subject
to
seizure
and
retention
by
the
terms
of
the
authorization.
As
previously
shown,
the
authorization
directs
the
persons
designated
therein
to
enter
and
search
the^
offices
of
the
applicant
firm.
inter
alia,
“for
documents,
books,
records,
papers
or
things
pertaining
or
relating
to
Collavino
Brothers
Construction
Company
Limited
that
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
docu-.
ments,
books,
papers
or
things
and
to
retain
them
until
they
are
produced
in
any
court
proceedings
.
.
(Emphasis.
is
mine.)
It
is
the
contention
of
the
respondent
that
the
words
used
conform
precisely
to
the
wording
of
the
latter
part
of
subsection
231(4)
which,
of
course,
is
true,
and
thus
the
Minister
through
his
designated
officials
was
entitled
to
seize
and
retain
without
restriction
anything
from
the
premises
of
Coopers
&
Lybrand
relating
to
Collavino
Brothers
which
might
afford
evidence
as
to
the
violation
of
any
provision
of
the
Act
whether
in
respect
of
the
violation
which
formed
the
basis
of
the
application
for
approval
of
the
Minister’s
authorization
or
not.
Since
the
language
is
in
conformity
with
the
words
of
the
section
it
is
not
defective
and,
in
counsel’s
view,
if
the
officers
effecting
the
seizures
exceeded
the
authority
granted
by
the
authorization
the
remedy
lies
elsewhere
but
the
validity
of
the
document
is
not
open
to
challenge.
Subsection
(5)
of
section
231
requires
that
the
application
to
a
judge
under
subsection
(4)
be
supported
by
evidence
on
oath
establishing
the
facts
upon
which
the
application
is
based.
As
will
have
been
noted
from
the
portions
of
the
affidavit
of
Mr
Brown
set
forth
earlier
herein,
a
violation
of
section
239
of
the
Income
Tax
Act
is
alleged.
Supporting
evidence
respecting
the
violation
is
set
forth
in
his
affidavit
as
well
as
the
other
affidavits
filed
“establishing
the
facts
upon
which
the
application
is
based”
.
It
is
clear,
therefore,
that
it
is
that
violation
which
has
to
be
established
to
the
satisfaction
of
the
judge
by
reason
of
the
opening
words
of
subsection
(4),
namely:
“Where
the
Minister
has
reasonable
and
probable
grounds
to
believe
that
a
violation
of
this
Act
or
a
regulation
has
been
committed
.
.
.”.
Since
in
establishing
the
facts
necessary
to
obtain
the
judge’s
approval
to
the
Minister’s
authorization
reference
should
be
made
to
a
specific
violation
of
the
Act,
it
defies
logic,
in
my
view,
to
say
as
does
counsel
for
the
Minister,
that
the
authorization
thus
approved
permits
the
removal
of
all
documents,
books,
records.
papers
or
things
from
the
premises
of
the
innocent
third
party
whether
related
to
the
alleged
violation
or
any
other
violation,
or
not.
Not
only
does
it
defy
logic
but
it
is
not
supported,
in
my
view,
by
the
wording
of
subsection
231(4)
and
represents
an
unwarranted
.extension
of
the
statutory
power,
which,
as
earlier
noted,
should
be
confined
strictly
to
that
given
by
Parliament.
To
facilitate
understanding
the
position
of
the
Minister,
Subsection
231(4),
for
convenience
stripped
to
its
essentials,
would
read
as
follows:
Where
the
Minister
has
reasonable
and
probable
grounds
to
believe
that
a
violation
of
this
Act
or
a
regulation
has
been
committed
.
.
.
he
may,
with
the
approval
of
a
judge
.
.
.
authorize
any
officer
.
.
.
to
enter
and
search
.
.
.
any
building
.
.
.
for
documents,
books
.
.
.
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
.
.
and
to:
seize
and
take
away
any
such
documents
.
.
.
and
retain
them
.
.
.
(The
italics
are
mine.)
It
is
the
submission
of
counsel
for
the
Minister
that
once
a
violation
has
been
established
to
the
satisfaction
of
the
judge,
the
authorization
given
need
no
longer
apply
only
to
the
violation
cited
in
support
of
the
application
for
approval,
but
may
extend
to
any
violation
of
any
provision
of
the
Act
by
virtue
of
the
italicized
words
in
the
stripped
down
version
of
the
section
above
set
forth.
It
follows
then,
in
his
view,
that
all
documents
of
Collavino
Brothers
in
the
possession
of
the
applicant
may
be
seized.
In
my
opinion
this
submission
does
not
correctly
interpret
the
section
for
the
following
reasons.
Firstly,
when
a
violation
is
referred
to
in
the
‘opening
words
‘it
refers
to
the
violation
specified
in
the
evidence
establishing
the
facts.
secondly,
the
violation
referred
to
in
the
latter
words
of
the
section
must
mean
the
same
violation
established
by
the
evidence.
If
this
were
not
so
surely
Parliament
would
have
either
used
the
article
“a”
in
referring
to
the
violation
or
the
word
“any”.
Use
of
either
would
have
erased
any
doubt
as
to
what
was
intended.
Thirdly,
it
will
be
noted
that
in
the
earlier
portion
of
the
section,
the
words
used
were
“a
violation
of
this
Act
.
.
.”.
This
surely
encompasses
every
provision
of
the
Act.
Thus,
there
can
be
no
support
for
counsel,
it
seems
to
me,
in
the
use
later
in
the
section
of
the
words
“the
violation
of
any
provision
of
this
Act”.
Both
phrases
refer
to
exactly
the
same
thing.
The
key
is
found
in
the
use
of
the
article
“a”
in
the
first
phrase
and
the
article
“the”
in
the
second
phrase,
not
in
the
use
of
the
word
“any”
in
conjunction
with
the
word
“provision”.
In
my
opinion,
clearly
the
violation
is
that
established
on
reasonable
and
probable
grounds
by
the
evidence.
Fourthly,
such
an
interpretation
is
consistent
with
the
requirement
of
proof
under
subsection
(5).
It
seems
to
me
that
there
would
be
little
necessity
for
the
existence
of
that
subsection
if
the
view
of
the
Minister
were
to
prevail.
Moreover,
it
is
more
in
accord
with
the
philosophy
of
entry,
search
and
seizure
provisions
that
requires
a
limitation
on
the
arbitrary
invasion
of
a
person’s
property
rights,
namely
that
it
is
exercisable
only
in
strict
conformity
with
the
enabling
Statute.
To
the
extent
then
that
it
appears
to
permit
the
seizure
of
all
of
the
documents,
books,
records,
papers
or
things
in
relation
to
Collavino
Brothers
in
the
possession
of
the
applicant
the
authorization
is
defective.
Accordingly,
I
would
set
aside
the
authorization
and
remit
the
matter
to
the
Minister
and
Judge
Zalev
for
the
issuance
of
a
new
authorization
restricting
the
right
to
seize
documents,
books,
records,
papers
or
things
in
the
possession
of
the
applicant
related
to
the
dealings
between
Collavino
Brothers
Construction
Company
Limited,
Dan
Bryan
and
Kendan
Manufacturing
Limited
concerning
the
construction
of
the
Bryan
residence
and
the
construction
of
the
addition
to
the
plant
of
Kendan
Manufacturing
Limited.
MacKay,
DJ
(dissenting):—The
facts
giving
rise
to
this
section
28
application
are
not
in
dispute
and
are
fully
set
out
in
the
reasons
for
judgment
of
my
brothers
Heald
and
Urie,
so
that
I
need
refer
to
them
only
briefly.
The
applicants,
Coopers
&
Lybrand
are
a
firm
of
chartered
accountants.
One
of
their
clients
is
Collavino
Brothers
Construction
Company
Limited,
a
firm
of
contractors
engaged
in
the
building
industry.
Purporting
to
act
under
a
written
authorization
to
search
and
seize
signed
on
behalf
of
the
Minister
of
National
Revenue
by
the
Director
General
of
the
Special
Investigations
Branch
of
the
Department
of
National
Revenue,
which
written
authorization
was
approved
by
His
Honour
Judge
Zalev,
officers
of
the
Department
seized
all
documents
and
papers
in
the
possession
of
the
applicants
that
belonged
to
or
were
in
reference
to
the
affairs
of
their
client
Collavino
Brothers.
The
authorization
to
search
and
seize
and
the
approval
by
Judge
Zalev
were
issued
pursuant
to
section
231,
subsections
(4)
and
(5)
of
the
Income
Tax
Act.
They
are
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?
(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
application
to
Judge
Zalev
was
supported
by
affidavits
that
had
reference
to
only
one
violation
of
the
Income
Tax
Act.
That
was
a
transaction
involving
Collavino
Brothers,
one
Dan
Bryan,
and
Kendan
Manufacturing
Ltd.
The
authorization
to
search
and
seize
in
so
far
as
it
relates
to
the
issue
in
this
case
authorized
a
number
of
named
persons
to
enter
and
search
and
was
as
follows:
(d)
The
offices
of
Coopers
&
Lybrand,
Chartered
Accountants,
and
all
storage
facilities
occupied
or
controlled
by
them
at
500
Ouellette
Avenue,
Windsor,
Ontario.
(e)
The
officer
of
Coopers
&
Lybrand,
Chartered
Accountants,
and
all
storage
facilities
occupied
or
controlled
by
them
at
201
Shepherd
Street
East,
Windsor,
Ontario.
for
documents,
books,
records,
papers
or
things
pertaining
or
relating
to
Collavino
Brothers
Construction
Company
Limited
that
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
The
submission
of
counsel
for
the
applicants
is
that
the
authorization
to
search
should
by
its
terms
have
been
limited
to
a
search
only
for
documents
that
would
be
evidence
in
respect
of
the
one
violation
referred
to
in
the
affidavits
before
Judge
Zalev,
and
that
because
of
its
very
broad
and
comprehensive
terms,
it
should
not
have
been
approved
by
the
judge.
I
am
unable
to
agree
with
this
submission.
The
authorization
follows
the
exact
wording
of
section
231;
subsection
(4).
The
first
part
of
Subsection
(4),
dealing
with
approval
by
a
judge
refers
to
a
violation
of
this
Act,
etc.
The
later
part
authorizing
the
search
and
seizure
empowers
the
officers
conducting
the
search
to
seize
books,
documents
and
papers
that
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Act
or
regulations.
“Any”
is
defined
in
The
Shorter
Oxford
English
Dictionary
as
“no
matter
which,
of
what
kind,
or
how
many
—(in
affirmative
sentences)
—every
one
of
the
sort
named,
of
any
kind
or
sort
whatever—a
quantity
or
number
however
great
or
small”.
In
my
view,
the
effect
of
section
231,
subsection
(4)
is
that,
while
the
evidence
before
a
judge
on
an
application
to
approve
an
authorization
to
search
and
seize
may
be
in
relation
to
only
one
violation
of
the
Act,
if
the
officers
conducting
the
search
in
respect
of
that
violation
find
evidence
of
any
other
violations
of
the
Act,
they
may
also
seize
that
evidence.
It
is
of
interest
to
note
that
officers
acting
on
a
search
warrant
issued
under
the
provisions
of
the
Criminal
Code
have
similar
powers
to
seize
evidence
in
respect
of
offences
other
than
the
one
in
respect
of
which
the
search
warrant
was
issued.
Section
445
of
the
Criminal
Code
is
as
follows:
445.
Every
person
who
executes
a
warrant
issued
under
section
443
may
seize,
in
addition
to
the
things
mentioned
in
the
warrant,
anything
that
on
reasonable
grounds
he
believes
has
been
obtained
by
or
has
been
used
in
the
commission
of
an
offence,
and
carry
.it
before
the
justice
who
issued
the
warrant
or
some
other
justice
for
the
same
territorial
division,
to
be
dealt
with
in
accordance
with
section
446.
It
is
not
disputed
that
the
persons
designated
to
conduct
the
search
in
the
present
case
seized
many
documents
and
papers
that
did
not
afford
evidence
of
any
violation
of
the
Act.
Such
documents
and
papers
should
not
have
been
seized.
The
authorization
to
search
and
seize
did
not
authorize
such
seizure.
The
difficulty
in
this
case,
however,
is
that
the
application
under
section
28
is
to
set
aside
or
quash
the
order
of
Judge
Zalev
approving
the
authorization
to
search
and
seize.
There
was
no
error
in
law
in
respect
of
the
authorization.
It
was
in
the
terms
authorized
by
the
Statute
and
there
was
no
error
in
law
on
the
part
of
Judge
Zalev
in
approving
the
authorization.
The
error
was
on
the
part
of
the
persons
subsequently
conducting
the
search
in
exceeding
the
authority
granted
to
them
by
the
authorization.
The
fact
that
those
persons
acted
beyond
and
outside
the
authority
granted
by
the
authorization
does
not
render
the
authorization
or
its
approval
by
Judge
Zalev
invalid.
I
would
dismiss
the
section
28
application.
In
their
notice
of
motion,
the
applicants
also
ask
for
what
they
describe
as
ancillary
orders,
(1)
asking
that
a//
documents
seized
be
delivered
to
the
sheriff
of
Essex
County
and
held
by
him
pending
the
outcome
of
the
litigation,
and
(2)
an
order
directing
that
all
documents,
papers
seized
be
returned
to
the
applicants.
This
Court
has
no
jurisdiction
on
a
section
28
application
to
make
such
orders.
The
applicant’s
remedy
in
respect
of
the
illegally
seized
documents
lies
elsewhere.
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