Le
Dain,
J
(concurred
in
by
Urie,
J):—This
is
an
application
under
section
28
of
the
Federal
Court
Act
to
review
and
set
aside
an
order
under
subsection
231(2)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
that
certain
documents,
books,
records,
papers
or
things
that
had
purportedly
been
seized
pursuant
to
paragraph
231(1)(d)
thereof
be
retained
by
the
Minister
of
National
Revenue
until
produced
in
court
proceedings.
The
applicant
contends
that
the
judge
who
made
the
retention
order
acted
beyond
his
jurisdiction
or
otherwise
erred
in
law
because
the
seizure
by
which
the
Minister
was
in
possession
of
the
documents,
books,
records,
papers
or
things
was
not
one
that
was
authorized
by
the
terms
of
paragraph
231
(1
)(d)
of
the
Act.
Subsections
(1)
and
(2)
of
section
231
of
the
Act
read
as
follows:
231.
(1)
Any
person
thereunto
authorized
by
the
Minister,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
may,
at
all
reasonable
times,
enter
into
any
premises
or
place
where
any
business
is
carried
on
or
any
property
is
kept
or
anything
is
done
in
connection
with
any
business
or
any
books
or
records
are
or
should
be
kept,
and
(a)
audit
or
examine
the
books
and
records
and
any
account,
voucher,
letter,
telegram
or
other
document
which
relates
or
may
relate
to
the
information
that
is
or
should
be
in
the
books
or
records
or
the
amount
of
tax
payable
under
this
Act,
(b)
examine
property
described
by
an
inventory
or
any
property,
process
or
matter
an
examination
of
which
may,
in
his
opinion,
assist
him
in
determining
the
accuracy
of
an
inventory
or
in
ascertaining
the
information
that
is
or
should
be
in
the
books
or
records
or
the
amount
of
any
tax
payable
under
this
Act,
(c)
require
the
owner
or
manager
of
the
property
or
business
and
any
other
person
on
the
premises
or
place
to
give
him
all
reasonable
assistance
with
his
audit
or
examination
and
to
answer
all
proper
questions
relating
to
the
audit
or
examination
either
orally
or,
if
he
so
requires,
in
writing,
on
oath
or
by
statutory
declaration
and,
for
that
purpose,
require
the
owner
or
manager
to
attend
at
the
premises
or
place
with
him,
and
(d)
if,
during
the
course
of
an
audit
or
examination,
it
appears
to
him
that
there
has
been
a
violation
of
this
Act
or
a
regulation,
seize
and
take
away
any
of
the
documents,
books,
records,
papers
or
things
that
may
be
required
as
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation.
(2)
The
Minister
shall,
(a)
within
120
days
from
the
date
of
seizure
of
any
documents,
books,
records,
papers
or
things
pursuant
to
paragraph
(1
)(d),
or
(b)
if
within
that
time
an
application
is
made
under
this
subsection
that
is,
after
the
expiration
of
that
time,
rejected,
then
forthwith
upon
the
disposition
of
the
application,
return
the
documents,
books,
records,
papers
or
things
to
the
person
from
whom
they
were
seized
unless
a
judge
of
a
superior
court
or
county
court,
on
application
made
by
or
on
behalf
of
the
Minister,
supported
by
evidence
on
oath
establishing
that
the
Minister
has
reasonable
and
probable
grounds
to
believe
that
there
has
been
a
violation
of
this
Act
or
a
regulation
and
that
the
seized
documents,
books,
records,
papers
or
things
are
or
may
be
required
as
evidence
in
relation
thereto,
orders
that
they
be
retained
by
the
Minister
until
they
are
produced
in
any
court
proceedings,
which
order
the
judge
is
hereby
empowered
to
give
on
ex
parte
application.
The
applicant
was
incorporated
in
the
State
of
Florida
and
carries
on
business
as
a
midway
and
carnival
operator
in
the
United
States
and
in
the
Provinces
of
Manitoba,
Saskatchewan
and
Alberta.
During
the
summer
of
1975,
while
the
applicant
was
operating
in
Canada,
the
Royal
Canadian
Mounted
Police
and
the
Edmonton
City
Police
were
conducting
an
investigation
into
the
affairs
of
the
applicant
and
its
concessionaires
with
respect
to
possible
violations
of
the
Criminal
Code
of
Canada,
and
the
Department
of
National
Revenue
was
conducting
an
investigation
into
the
affairs
of
the
applicant
with
respect
to
possible
liability
under
the
Income
Tax
Act.
The
Department’s
investigation
was
being
conducted
by
Edmund
M
Swartzack,
an
auditor
and
special
investigator,
who
was
authorized
by
the
Deputy
Minister
of
National
Revenue
for
Taxation
to
exercise
the
powers
conferred
by
subsection
231(1)
of
the
Act.
In
the
course
of
his
investigation
Swartzack
was
in
contact
with
officers
of
the
Royal
Canadian
Mounted
Police
and
the
Edmonton
City
Police.
The
degree
of
consultation
and
co-operation
between
them
is
not
clear,
but
it
appears
that
there
was
an
understanding
that
if
the
police
came
upon
anything
suggestive
of
tax
evasion
they
would
inform
Swartzack.
At
one
point
he
was
permitted
by
the
police
to
listen
to
a
tape
recording
of
a
private
communication,
and
he
was
present
during
a
discussion
in
which
it
was
decided
to
obtain
search
warrants.
On
July
23,
1975
on
informations
sworn
by
Inspector
E
Hahn
of
the
Edmonton
City
Police
search
warrants
were
obtained
under
section
443
of
the
Criminal
Code
authorizing
search
at
the
Edmonton
Exhibition
Grounds
and
other
specified
places
for
documents
and
other
property
affording
evidence
of
“conspiracy
to
defraud
the
Government
of
Canada
by
destroying,
mutilating,
altering,
falsifying,
or
making
false
entries
in
a
book,
paper,
writing,
valuable
security
or
document
contrary
to
the
Criminal
Code
of
Canada”.
At
or
about
midnight
on
July
24,
1975
officers
of
the
Edmonton
City
Police
and
the
Royal
Canadian
Mounted
Police
entered
and
searched
the
office
premises
of
the
applicant
at
the
Edmonton
Exhibition
Grounds
and
seized
documents
and
other
property
found
therein.
Swartzack
accompanied
the
police
when
they
carried
out
the
search
and
seizure.
From
July
25,
1975
to
July
28,
1975
the
Edmonton
City
Police
made
the
documents
and
other
property
which
had
been
seized
available
for
inspection
by
Swartzack,
and
during
this
period
Swartzack
and
persons
working
under
his
direction
carried
out
at
the
Edmonton
Police
Station
what
purported
to
be
an
audit
and
examination
pursuant
to
paragraph
231
(1)(a)
of
the
Income
Tax
Act.
On
July
28,
1975
the
applicant
applied
to
the
Supreme
Court
of
Alberta
for
certiorari
to
quash
the
search
warrants
that
had
been
obtained
under
the
provisions
of
the
Criminal
Code.
The
warrants
were
quashed
by
judgment
of
Cavanagh,
J
on
August
13,
1975.
He
held
that
the
informations
did
not
disclose
sufficient
grounds
to
justify
the
issue
of
the
warrants,
and,
further,
that
the
warrant
directing
a
search
of
the
Edmonton
Exhibition
Grounds
was
too
broad
in
its
terms.
The
judgment
of
Cavanagh,
J
was
appealed,
but
the
Court
was
not
informed
of
the
present
status
or
outcome
of
the
appeal.
On
July
29,
1975
Swartzack
made
what
purported
to
be
a
seizure
of
the
documents
and
other
property
at
the
Edmonton
City
Police
Station
pursuant
to
paragraph
231(1)(d)
of
the
Income
Tax
Act.
The
documents
were
set
aside
in
a
room
to
which
Swartzack
alone
had
the
key,
were
later
removed
to
the
Divisional
Headquarters
of
the
Royal
Canadian
Mounted
Police
in
Edmonton,
and
were
finally
conveyed
to
the
District
Office
of
the
Department
of
National
Revenue
in
Regina.
As
a
result
of
the
examination
of
the
books,
records,
accounts,
vouchers
and
other
documents
seized,
assessments
were
made
against
the
applicant
in
respect
of
the
taxation
years
1974,
1975
and
1976
in
a
total
amount
of
$730,219.52,
and
a
writ
of
fieri
facias
was
executed
against
the
property
of
the
applicant
in
Regina
and
Winnipeg.
Charges
were
also
laid
under
the
Criminal
Code
and
the
Income
Tax
Act
against
officers
of
the
applicant,
and
other
persons
connected
with
the
applicant
as
employees
or
concessionaires.
On
August
18,
1975
the
applicant
applied
by
way
of
originating
notice
of
motion
to
the
Trial
Division
against
the
Minister
of
National
Revenue
as
respondent
for
the
following
relief
with
respect
to
the
seizure
of
its
property:
...
for
an
order
prohibiting
the
Respondent,
and
any
officer
of
the
Department
of
National
Revenue
acting
on
his
behalf,
from
perusing,
reviewing
or
copying
any
and
all
of
the
property
seized
from
the
premises
of
the
Applicant
at
Edmonton,
Alberta,
and
thereafter
seized
from
the
premises
of
the
Edmonton
City
Police;
and
for
an
order
of
certiorari
in
respect
of
such
seizure
or
seizures;
and
for
an
order
declaring
the
said
seizure
or
seizures
to
be
wrongful
and
unlawful
and
for
an
order
requiring
the
Respondent
to
deliver
all
such
property
so
seized
from
the
premises
of
the
Applicant,
and
all
copies
which
may
have
been
made
thereof,
to
the
Applicant
forthwith.
On
November
18,
1975
this
application
was
dismissed
by
the
Trial
Division.
The
Court
held
that
the
declaratory
relief
and
the
order
to
deliver
the
property
to
the
applicant
could
only
be
obtained
by
an
action,
and,
further,
that
the
seizure
made
by
Swartzack
at
the
Edmonton
Police
Station
on
July
29,
1975
was
a
seizure
authorized
by
paragraph
231
(1)(d)
of
the
Income
Tax
Act.
The
following
passages
are
from
the
Court’s
reasons:
I
am
not
able
to
accept
the
argument
of
applicant’s
counsel
that
because
Said
audit
or
examination
was
not
being
conducted
in
applicant’s
place
of
business
or
where
anything
was
being
done
in
connection
with
applicant’s
business,
that
said
examination
and
resultant
seizure
was
outside
the
authority
of
paragraph
231
(1)(d).
In
my
view,
paragraph
231(1)(d)
authorizes
the
audit,
examination,
and
seizure
of
a
taxpayer’s
“documents,
books,
records,
papers
or
things”
wherever
they
may
be
and
for
said
purpose,
authorizes
entry
“into
any
premises
or
place”
.
.
.
“where
.
.
.
any
property
is
kept”.
.
.
.
I
think
that
Mr
Swartzack
had
the
power
to
seize
said
property
under
the
authority
of
paragraph
231
(1)(d),
no
matter
where
it
might
be
in
this
country,
and
no
matter
how
it
arrived
at
the
location
where
it
was
when
he
seized
it.
On
November
19,
1975
the
applicant
appealed
to
this
Court
from
the
order
of
the
Trial
Division.
On
November
20,
1975,
application
was
made
on
behalf
of
the
Minister
of
National
Revenue
for
a
retention
order
pursuant
to
subsection
231(2)
of
the
Income
Tax
Act
in
the
following
terms:
ON
BEHALF
of
the
Minister
of
National
Revenue
I,
Laurence
Edwin
Mann,
Director
of
the
Regina
District
Office
of
the
Department
of
National
Revenue
hereby
apply
for
an
order
that
the
documents,
books,
records,
papers
or
things
seized
on
the
twenty-ninth
day
of
July,
1975,
under
the
authority
of
the
provisions
of
paragraph
231(d)
of
the
Income
Tax
Act
from
the:
Edmonton
City
Police
at
4
Sir
Winston
Churchill
Square
Edmonton,
Alberta
be
retained
by
the
Minister
of
National
Revenue
until
they
are
produced
in
any
court
proceedings.
IN
SUPPORT
of
this
Application,
I
produce
the
Affidavit
of
Orville
T
Dahl
sworn
the
20th
day
of
November,
1975,
which
in
my
opinion
establishes
that
the
Minister
of
National
Revenue
has
reasonable
and
probable
grounds
to
believe
that
there
has
been
a
violation
of
the
Income
Tax
Act
or
a
Regulation
thereto
and
that
the
seized
documents,
books,
records,
papers
or
things
are
or
may
be
required
in
relation
to
proceedings
against
Royal
American
Shows,
Inc,
Tampa,
Florida,
United
States
of
America.
Dahl’s
affidavit
included
the
following
paragraph:
11.
As
a
result
of
my
enquiries
I
know
that
documents,
books,
records,
papers
and
things
were
seized
from
the
Edmonton
City
Police
at
4
Sir
Winston
Churchill
Square,
Edmonton,
Alberta
on
July
29,
1975,
pursuant
to
paragraph
231(1)(d)
of
the
Income
Tax
Act.
On
November
20,
1975,
upon
the
foregoing
application,
His
Honour
Judge
McClelland
made
an
order
in
the
following
terms:
I
HEREBY
ORDER
THAT
the
documents,
books,
records,
papers
or
things
referred
to
in
the
above
application
made
on
behalf
of
the
Minister
of
National
Revenue
be
retained
by
him
until
they
are
produced
in
any
court
proceedings.
On
May
26,
1976
the
appeal
from
the
order
of
the
Trial
Division
made
on
November
18,
1975
was
dismissed
by
this
Court
on
the
ground
that
the
question
had
become
academic.
The
concept
of
jurisdiction
can
be
a
difficult
and
elusive
one
as
a
measure
of
the
ambit
and
conditions
precedent
of
statutory
authority,
but
it
is
the
one
that
must
be
applied
in
view
of
the
terms
of
section
28
of
the
Federal
Court
Act.
In
the
present
case
the
applicant
contends,
in
general
terms,
that
the
validity
of
the
retention
order
depends
on
the
legality
of
the
seizure.
In
attempting
to
place
this
contention
within
the
scope
of
review
contemplated
by
section
28
the
applicant
argues
that
if
a
judge
makes
a
retention
order
pursuant
to
subsection
231(2)
in
a
case
in
which
there
has
not
been
a
seizure
authorized
by
paragraph
231(1)(d)
he
acts
beyond
his
jurisdiction
or
otherwise
errs
in
law.
It
is
this
proposition
that
must
now
be
considered.
In
my
opinion
this
issue
can
only
be
framed
in
terms
of
jurisdiction.
If
it
is
not
a
jurisdictional
question
it
is
nothing
upon
which
a
section
28
application
can
be
based.
I
cannot
see
that
there
is
any
question
of
error
of
law
within
jurisdiction.
The
question,
as
I
see
it,
is
the
extent
to
which
a
seizure
pursuant
to
paragraph
231
(1)(d)
should
be
held
to
be
a
condition
precedent
to
the
exercise
of
the
authority
conferred
by
subsection
231(2).
The
answer
to
this
question
turns,
of
course,
on
a
consideration
of
the
terms
of
subsections
(1)
and
(2)
of
section
231,
which
have
been
set
out
above.
On
a
reading
of
these
subsections
it
appears
to
me
to
be
obvious
that
it
cannot
have
been
intended
that
the
power
to
make
a
retention
order
exists
without
reference
to
the
basis
on
which
the
Minister
has
come
into
possession
of
the
property;
otherwise,
its
effect
could
be
to
give
legal
validity
to
the
retention
by
the
Minister
of
property
which
has
come
into
his
possession
by
means
not
authorized
by
law.
The
retention
order
is,
in
effect,
a
prolongation
of
the
consequences
of
the
seizure.
Subsection
231(2)
as
a
whole
is
concerned
with
the
length
of
time
for
which
property
may
be
retained
pursuant
to
a
seizure
under
paragraph
231
(1)(d).
It
limits
the
time
to
120
days
unless
the
Minister
obtains
an
order
authorizing
him
to
retain
the
property
until
it
is
produced
in
court
proceedings.
The
words
“seizure”
and
“seized”
in
the
subsection
confirm
what
in
my
view
would
have
to
be
necessarily
implied,
for
the
reasons
indicated
above—that
it
is
property
that
has
been
seized
pursuant
to
paragraph
231
(1)(d)
that
a
judge
is
empowered
to
make
the
object
of
a
retention
order.
This
view
of
the
matter,
assuming
it
to
be
correct,
does
not,
however,
necessarily
dispose
of
the
issue
before
us.
Can
a
judge
be
said
to
lack
authority
to
proceed
to
make
a
retention
order
if,
on
the
material
that
is
placed
before
him,
there
purports
to
have
been
a
seizure
pursuant
to
paragraph
231
(1
)(d)
and
the
legality
of
that
seizure
has
not
been
successfully
challenged
before
the
judge
makes
the
retention
order?
In
the
present
case
it
was
clear
on
the
face
of
the
application
for
a
retention
order
and
the
affidavit
in
support
thereof
that
the
seizure
had
been
made
in
the
hands
of
the
Edmonton
City
Police
at
what,
from
the
address
indicated,
could
presumably
be
ascertained
to
be
the
Edmonton
City
Police
Station.
Whether
on
such
material
the
judge
who
made
the
retention
order
had
a
sufficient
basis
for
assuming
that
there
had
been
a
lawful
seizure
pursuant
to
paragraph
231(1)(d)
is,
as
I
see
it,
the
issue.
Was
there
such
material
before
the
judge
that
he
could
reasonably
conclude
that
the
Edmonton
City
Police
Station
was
a
place
where
an
authorized
person
was
empowered
by
subsection
231(1)
to
enter,
audit
or
examine
and
seize?
If
the
material
did
not
permit
such
a
conclusion
then,
in
my
opinion,
he
did
not
have
authority
to
proceed
to
make
a
retention
order.
It
must
be
sufficient
on
an
application
for
a
retention
order
if
the
material
in
support
thereof
shows
what
purports
to
have
been
a
seizure
pursuant
to
paragraph
231
(1)(d),
but
when
the
very
issue
as
to
the
legality
of
the
seizure
appears
on
the
face
of
the
application
the
sufficiency
of
such
material
must
be
subject
to
review.
I
turn
then
to
the
question
of
whether
a
seizure
at
the
Edmonton
City
Police
Station
is
one
that
could
be
authorized
by
paragraph
231(1)(d).
In
my
opinion
paragraph
231(1)(d)
cannot
be
construed
to
mean
that
an
authorized
person
may
seize
and
take
away
any
documents,
books,
records,
papers
or
things
wherever
and
under
whatever
circumstances
he
may
find
them.
It
is
not
an
independent
and
unqualified
power
of
seizure.
The
object
of
subsection
231(1)
is
to
permit
a
person
authorized
by
the
Minister
to
enter
certain
places
for
the
purpose
of
making
an
audit
or
examination.
If
in
the
course
of
such
audit
or
examination
it
appears
to
him
that
there
has
been
a
violation
of
the
Act
or
regulations
he
may
seize
and
take
away
any
documents,
books,
records,
papers
or
things
that
may
be
required
as
evidence
of
such
violation.
It
is
a
power
of
seizure
that
arises
in
certain
defined
circumstances.
It
is
related
to
the
power
to
enter
for
the
purpose
of
audit
or
examination
and
is
necessarily
limited
in
its
potential
scope
by
that
power.
The
power
to
seize
can
only
be
validly
exercised
if
it
is
exercised
pursuant
to
an
entry
and
audit
or
examination
authorized
by
paragraph
231
(1)(a).
The
Edmonton
City
Police
Station
is
obviously
not
a
place
where
any
business
is
carried
on
or
anything
is
done
in
connection
with
any
business
within
the
meaning
of
subsection
231(1).
Nor
do
I
think
that
it
can
be
said,
in
respect
of
the
things
seized
in
this
case,
to
be
a
place
where
books
or
records
are
or
should
be
kept
within
the
meaning
of
the
section.
The
sense
in
which
the
word
“kept”
is
used
must
be
that
which
is
indicated
in
section
230
of
the
Act,
which
imposes
the
obligation
to
“keep”
records
and
books
of
account.
It
must
refer
to
the
place
where
such
books
or
records
are
kept
or
should
be
kept
by
the
person
required
to
keep
them
according
to
section
230.
It
is
necessary
then
to
consider
whether
the
Edmonton
City
Police
Station
can
be
said
to
be
a
“place
where
.
.
.
any
property
is
kept”
within
the
meaning
of
subsection
231(1).
On
the
English
version
of
the
section
I
might
be
disposed
to
read
these
words
as
qualified
by
the
words
“in
connection
with
any
business”,
but
the
French
version
of
the
section
excludes
that
construction.
Nevertheless,
in
the
context
of
subsection
231(1)
read
as
whole,
I
do
not
think
that
the
word
“property”
can
be
taken
in
its
broadest
sense.
It
would
not
appear
to
be
intended
to
cover
books
or
records,
which
are
separately
provided
for.
A
comparison
of
the
terms
of
paragraphs
(a)
and
(b)
of
subsection
231(1),
moreover,
suggests
that
“property”
is
used
in
the
section
in
a
sense
other
than
that
of
“books
and
records
and
any
account,
voucher,
letter,
telegram
or
other
document”.
It
is
my
conclusion
from
the
terms
of
paragraph
(b)
that
“property”
is
used
in
the
sense
of
physical
assets,
by
an
examination
of
which
the
accuracy
of
an
inventory
or
other
information
in
books
or
records
may
be
ascertained,
or
tax
liability
may
be
otherwise
determined,
but
not
the
material
which
forms
part
of
a
company’s
or
individual’s
records
—in
other
words,
not
documentary
material.
The
places
specified
for
entry
in
subsection
231(1)
are
specified
with
audit
or
examination
in
view.
In
this
respect
subsection
231(1)
is
to
be
contrasted
with
subsection
231(4),
which
confers
a
power
of
entry
for
purposes
of
search.
The
fact,
as
recited
in
the
application
for
a
retention
order
and
the
supporting
affidavit,
that
“documents,
books,
records,
papers
or
things”
were
seized
at
the
Edmonton
City
Police
Station
is
not
a
sufficient
indication
that
this
was
a
place
at
which
property
was
kept
within
the
meaning
of
subsection
231(1).
In
view
of
the
place
at
which
the
seizure
was
made
there
was
not
in
my
opinion
sufficient
material
before
the
judge
who
made
the
retention
order
to
indicate
that
there
had
been
what
he
could
assume
to
have
been
a
lawful
seizure
pursuant
to
paragraph
231
(1)(d).
I
therefore
conclude
that
the
judge
acted
beyond
his
jurisdiction
in
making
the
retention
order.
In
view
of
this
conclusion
it
is
unnecessary
for
me
to
consider
whether
a
lawful
seizure
can
be
made
pursuant
to
subsection
231(1)
of
the
Income
Tax
Act
of
property
that
is
held
pursuant
to
a
seizure
under
the
provisions
of
the
Criminal
Code.
For
these
reasons
I
would
allow
the
section
28
application
and
set
aside
the
retention
order.
Pratte,
J
(dissenting):—This
section
28
application
is
directed
against
a
decision
of
a
judge
under
subsection
231(2)
of
the
Income
Tax
Act.*
The
applicant
was
suspected
of
having
violated
the
Income
Tax
Act.
Purporting
to
act
under
subsection
231(1),
a
person
authorized
by
the
Minister
seized
documents
and
records
belonging
to
the
applicant.
It
was
thought
that
an
examination
of
those
papers,
which
were
then
in
the
hands
of
the
Edmonton
Municipal
Police
following
a
seizure
made
under
the
Criminal
Code,
would
show
conclusively
the
guilt
of
the
applicant.
Under
subsection
231(2)
that
new
seizure
was
good
only
for
120
days;
at
the
expiry
of
that
period
the
Minister
was
obliged
to
return
the
objects
seized
unless
he
had
obtained
from
a
judge
an
order
that
they
be
retained
until
their
production
in
court.
Within
the
prescribed
time,
the
Minister
applied
for
and
obtained
such
an
order,
the
validity
of
which
is
now
in
issue.
The
applicant
contends
that
the
“retention”
order
is
invalid
because
the
documents
and
things
in
respect
of
which
it
was
made
had
not
been
validly
seized
under
subsection
231(1).
According
to
the
applicant,
a
seizure,
under
subsection
231(1),
cannot
be
made
elsewhere
than
at
the
taxpayer’s
place
of
business
and
it
cannot
be
made,
either,
when
the
objects
to
be
seized
have
already
been
seized
under
the
Criminal
Code:
in
that
view,
the
seizure
was
tainted
with
two
irregularities
and
should
be
considered
to
be
invalid.
The
applicant
submits
that
had
the
judge
inquired
into
the
validity
of
the
seizure,
he
would
have
found
it
to
be
invalid.
The
judge,
according
to
the
applicant,
erred
in
law
in
failing
to
inquire
into
the
validity
of
the
seizure
and,
in
any
event,
he
exceeded
his
jurisdiction
when
he
pronounced
the
retention
order
since
subsection
231(2)
did
not
empower
him
to
make
such
an
order
in
respect
of
property
that
had
not
been
validly
seized
under
subsection
231(1).
in
writing,
on
oath
or
by
statutory
declaration
and,
for
that
purpose,
require
the
owner
or
manager
to
attend
at
the
premises
or
place
with
him,
and
(d)
if,
during
the
course
of
an
audit
or
examination,
it
appears
to
him
that
there
has
been
a
violation
of
this
Act
or
a
regulation,
seize
and
take
away
any
of
the
documents,
books,
records,
papers
or
things
that
may
be
required
as
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation.
(2)
The
Minister
shall,
(a)
within
120
days
from
the
date
of
seizure
of
any
documents,
books,
records,
papers
or
things
pursuant
to
paragraph
(1
)(d),
or
(b)
if
within
that
time
an
application
is
made
under
this
subsection
that
is,
after
the
expiration
of
that
time,
rejected,
then
forthwith
upon
the
disposition
of
the
application,
return
the
documents,
books,
records,
papers
or
things
to
the
person
from
whom
they
were
seized
unless
a
judge
of
a
superior
court
or
county
court,
on
application
made
by
or
on
behalf
of
the
Minister,
supported
by
evidence
on
oath
establishing
that
the
Minister
has
reasonable
and
probable
grounds
to
believe
that
there
has
been
a
violation
of
this
Act
or
a
regulation
and
that
the
seized
documents,
books,
records,
papers
or
things
are
or
may
be
required
as
evidence
in
relation
thereto,
orders
that
they
be
retained
by
the
Minister
until
they
are
produced
in
any
court
proceedings,
which
order
the
judge
is
hereby
empowered
to
give
on
ex
parte
application.”
In
my
view,
the
judge
who
made
the
retention
order
clearly
had
no
jurisdiction
to
rule
on
the
validity
of
the
seizure
that
had
been
made
under
subsection
231(1)
and,
for
that
reason,
had
no
duty
to
inquire
into
that
matter.
I
am
also
of
opinion
that
the
judge
did
not
exceed
his
jurisdiction
when
he
made
the
order
under
attack.
In
my
view,
at
the
time
the
application
for
that
order
was
made,
it
could
be
said
that
the
property
of
the
applicant
had
been
seized
pursuant
to
subsection
231(1)
even
if
it
is
assumed
that
that
seizure
had
been
made
irregularly.
The
seizure
had
clearly
been
made
by
a
person
purporting
to
act
under
subsection
231(1)
and,
as
a
result
of
that
seizure,
the
Minister
had
acquired
possession
of
the
seized
property.
In
those
circumstances,
the
seizure,
which
had
not
been
set
aside
by
a
court
having
jurisdiction
to
rule
on
its
validity,
was,
in
my
view,
a
seizure
made
pursuant
to
subsection
231(1)
and,
as
such,
a
sufficient
basis
for
the
jurisdiction
of
the
judge
to
make
the
retention
order.
Moreover,
I
consider
that
the
seizure
could
legally
be
made
at
the
Edmonton
City
Police
Station.
In
my
view,
if
subsection
231(1)
indicates
the
places
where
the
right
of
entry
can
be
exercised,
it
does
not
circumscribe
the
power
of
seizure
to
those
places.
For
these
reasons,
I
would
dismiss
the
application.
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