Stone,
J.A.
(Marceau
and
MacGuigan,
JJ.A.
concurring):—This
is
an
appeal
from
a
judgment
of
Reed,
J.
in
the
Trial
Division
rendered
September
28,
1988
[[1988]
2
C.T.C.
312;
88
D.T.C.
6469].
By
that
judgment,
the
respondent's
claim
against
a
decision
of
the
Minister
of
National
Revenue
rejecting
a
refund
of
excise
tax
paid
was
allowed
and
the
matter
was
referred
back
to
the
Minister
for
fresh
consideration.
The
principal
question
before
the
trial
judge
was
whether
the
respondent
was
entitled
to
a
refund
of
excise
taxes
paid
between
1983
and
1985
pursuant
to
Part
IV.1
of
the
Excise
Tax
Act,
R.S.C.
1970,
c.
E-13
as
amended
("the
Act").
That
part
was
enacted
in
1982
by
the
Excise
Tax
Act,
S.C.
1980-81-82-83,
c.
68,
section
43.
In
R.S.C.
1985,
c.
E-15,
Part
IV.1
became
Part
V
and,
like
the
trial
judge,
I
shall
so
refer
to
it.
The
tax
carries
the
title
of
“
Natural
Gas
and
Gas
Liquids
Tax".
The
taxing
provisions
relevant
to
this
dispute
are
subsection
34(1),
paragraph
34(2)(b)
and
section
35
of
the
Act.
They
read
in
part:
34.
(1)
There
shall
be
imposed,
levied
and
collected
on
the
first
receipt
of
natural
gas
liquids
produced
at
a
gas
processing
plant
or
a
gas
reprocessing
plant
for
removal
from
the
plant
a
tax
at
the
rate
specified
in
subsection
35(1).
(2)
Notwithstanding
subsection
(1),
no
tax
is
payable
under
this
section
in
respect
of.
.
..
(b)
natural
gas
liquids
injected
as
miscible
flood
material
into
a
natural
reservoir
in
Canada
for
the
enhanced
recovery
of
oil
from
that
reservoir.
35.
(2)
The
tax
imposed
under
section
34
is
payable
(a)
at
the
time
the
natural
gas
liquids
are
first
received
for
removal
from
the
gas
processing
plant
or
gas
reprocessing
plant
where
they
were
produced;
and
(b)
by
the
person
who
owns
the
natural
gas
liquids
at
the
time
described
in
paragraph
(a).
Subsection
38(2)
and
subsections
40(1)
and
(3)
provide
mechanisms
for
collecting
the
tax:
38.
(2)
Every
operator
of
a
gas
processing
plant
or
a
gas
reprocessing
plant
is
an
agent
of
the
Minister
for
the
purpose
of
collecting
tax
under
this
Part
and
as
such
shall
levy
and
collect
the
tax
imposed
by
subsection
34(1)
from
any
person
who
owns
natural
gas
liquids
produced
at
that
plant
at
the
time
they
are
first
received
for
removal
from
that
plant.
40.
(1)
Every
licensee
who
is
required
by
this
Part
to
collect
or
pay
tax
shall
make
each
month
a
true
return
of
all
amounts
payable,
collected
or
collectible
by
him
by
way
of
tax
imposed
by
this
Part
for
the
last
preceding
month,
which
return
shall
include
such
other
information
and
be
in
such
form
as
the
Minister
may
prescribe.
(3)
The
return
required
by
this
section
shall
be
filed
and
the
taxes
payable,
collected
or
collectible
by
a
licensee
shall
be
remitted
not
later
than
the
last
day
of
the
first
month
succeeding
that
in
which
the
taxes
were
paid
or
became
payable.
Provision
for
a
refund
of
tax
appears
in
paragraphs
68(1)(g)
of
this
Act:
68.
(1)
A
deduction
from,
or
refund
of,
any
of
the
taxes
imposed
by
this
Act
may
be
granted
.
.
.
(g)
where
the
original
receipt
of
.
.
.
natural
gas
liquids
was
subject
to
tax
under
Part
V,
but
exemption
is
provided
on
subsequent
use
by
that
Part.
Part
V
enjoyed
but
a
short
lifespan.
On
May
23,
1985,
the
government
of
Canada
gave
notice,
as
part
of
its
budget
proposals,
of
an
intention
to
repeal
the
Natural
Gas
and
Gas
Liquids
Tax
and,
that
same
day,
introduced
into
the
House
of
Commons
a
Notice
of
Ways
and
Means
Motion
with
resolutions
signalling
the
intended
repeal
to
be
effective
on
June
1,
1985.
Legislation
implementing
the
repeal
retroactive
to
that
date
was
soon
introduced
and
became
law
on
March
4,
1986
as
An
Act
to
Amend
the
Excise
Act
and
to
Amend
Other
Acts
in
Consequence
Thereof,
S.C.
1984-85-86,
c.
9.
The
repealing
provisions
are
found
in
sections
14
and
23
which
read
in
part:
14.
(1)
Part
IV.1
of
the
said
Act
is
repealed
(2)
Subsection
(1)
shall
be
deemed
to
have
come
into
force
on
June
1,
1985.
23.
(1)
Subsection
44(1)
of
the
said
Act
is
amended
by.
.
.
.
repealing
paragraph
(g)
thereof.
(4)
Subsections
(1)
.
.
.
shall
be
deemed
to
have
come
into
force
on
June
1,
1985.
Paragraph
44(1)(g)
became
paragraph
68(1)(g)
in
R.S.C.
1985.
The
dispute
came
about
in
this
way.
The
respondent
purchased
quantities
of
natural
gas
liquids
during
the
years
1983
to
1985
for
use
in
a
hydrocarbon
miscible
flood
project.
That
gas
was
in
fact
used
in
that
project
between
May
24,
1985
and
December
31,
1985.
It
is
not
in
dispute
that
the
use
made
of
the
natural
gas
liquids
met
the
requirements
of
paragraph
34(2)(b)
of
the
Act
as
it
stood
prior
to
its
repeal.
It
was
not,
however,
until
December
1,1986—some
five
months
after
the
repealing
legislation
was
adopted
and
some
17
months
after
the
repeal
had
become
effective—that
the
respondent
submitted
to
the
Minister
an
application
for
a
refund
of
excise
taxes
paid
in
respect
of
the
natural
gas
liquids
in
question.
The
ground
taken
by
the
Minister
for
rejecting
the
application
was
purely
and
simply
that
the
former
legislation
had
been
repealed
"with
no
provision
for
refund".
There
appears
no
dispute
that,
but
for
the
repeal,
the
amount
claimed
would
have
been
refunded.
In
allowing
the
respondent's
claim,
the
learned
trial
judge
was
of
opinion
that
as
of
March
4,
1986,
when
the
repealing
legislation
was
enacted,
the
respondent
possessed
an
"accrued"
or"accruing"
right
to
the
moneys
held
by
the
appellant
within
paragraph
43(c)
of
the
Interpretation
Act,
R.S.C.
1985,
c.
1-21.
After
discussing
several
cases
including
the
decision
of
the
Court
of
Appeal
for
Ontario
in
Re
Falconbridge
Nickel
Mines
Ltd.
and
Minister
of
Revenue
for
Ontario,
[1981]
C.T.C.
120;
121
D.L.R.
(3d)
403,
she
said
(at
page
322
(D.T.C.
6476)):
I
conclude
that
the
plaintiff
in
this
case
had,
as
of
March
4,
1986,
a
right
accrued
or
accruing
to
the
moneys
held
by
the
defendant.
As
was
said
by
Mr.
Justice
Thorson
in
the
Falconbridge
case,
an
amount
was
paid
as
tax,
in
excess
of
what
should
have
been
paid;
just
because
a
refund
was
outstanding
and
no
application
for
a
refund
had
been
made,
one
should
not
conclude
that
the
right
was
merely
"theoretical".
A
right
is
no
less
a
right
merely
because
all
the
steps
necessary
to
be
taken
to
ensure
its
enforcement
have
not
yet
been
taken.
In
this
case,
the
plaintiff
had
not
yet
filed
an
application
for
the
refund
but
the
right
to
the
funds
was
the
plaintiff's.
It
remained
for
the
learned
judge
to
determine
whether
the
repeal
of
paragraph
68(1)(g)
had
created
an
obstacle
to
the
making
of
a
refund
in
accordance
with
the
accrued
or
accruing
right
she
had
already
recognized.
It
was
her
view
that
a
refund
could
be
made
pursuant
to
paragraph
68(1)(a)
of
the
Act:
68.
(1)
A
deduction
from,
or
refund
of,
any
of
the
taxes
imposed
by
this
Act
may
be
granted
(a)
where
an
overpayment
has
been
made
by
the
taxpayer;
The
appellant
disputes
the
correctness
of
the
judgment
below
both
with
regard
to
the
finding
that
the
respondent
possessed
an
“accrued”
or
"accruing"
right
to
a
refund
that,
notwithstanding
the
repealing
legislation,
was
preserved
by
paragraph
43(c)
of
the
Interpretation
Act,
and
also
with
regard
to
her
finding
that
the
refund
could
be
made
pursuant
to
paragraph
68(1)(a)
of
the
Act.
I
shall
deal
with
these
issues
seriatim.
It
seems
to
me
that
the
learned
trial
judge
was
quite
right
in
deciding
that
the
respondent
did
possess
a
right"
accrued”
or"
accruing"
as
of
March
4,
1986,
and
hence
that
the
right
to
a
refund
was
preserved
by
the
language
of
paragraph
43(c)
of
the
Interpretation
Act:
43.
Where
an
enactment
is
repealed
in
whole
or
in
part,
the
repeal
does
not
(c)
affect
any
right,
privilege,
obligation
or
liability
acquired,
accrued,
accruing
or
incurred
under
the
enactment
so
repealed,
By
the
plain
language
of
former
paragraph
34(2)(b)
of
the
Act"
no
tax
is
payable
under
this
section
in
respect
of
.
.
.
natural
gas
liquids
injected
as
miscible
flood
material
into
a
natural
gas
reservoir
in
Canada
for
the
enhanced
recovery
of
oil
from
that
reservoir".
The
use
made
by
the
respondent
of
the
natural
gas
liquids
here
in
question
plainly
fell
within
that
paragraph.
By
the
wording
of
subsection
38(2)
taxes
had
to
be
collected
from
the
respondent.
The
respondent
was
never
charged
or
assessed
the
taxes
but
merely
paid
amounts
due
to
the
working
of
the
collection
mechanisms
contained
in
the
legislation,
and
payment
of
those
amounts
was
subject
to
the
right
of
refund
upon
use
of
the
gas
for
a
tax
exempt
purpose.
In
this
case
the
gas
was
purchased
and
was
in
fact
used
for
an
exempt
purpose
well
before
the
repealing
legislation
was
enacted.
Upon
such
use
being
made
of
the
gas,
in
my
view,
a
right
arose
in
favour
of
the
respondent
to
a
refund
of
the
amounts
paid
in
respect
of
these
particular
natural
gas
liquids.
That
right
had
"accrued"
or
was
"accruing"
at
the
time
the
repealing
legislation
was
enacted.
It
is
true,
of
course,
that
it
remained
for
the
Minister
to
receive
an
application
and
to
grant
the
refund,
but
this
did
not,
as
I
see
it,
confer
an
unfettered
discretion
on
the
Minister
to
grant
or
to
deny
a
refund
as
he
saw
fit.
Once
it
was
shown
to
his
satisfaction
that
the
gas
had
been
used
as
required
by
paragraph
34(2)(b),
the
refund
was
automatically
to
follow.
I
therefore
respectfully
agree
with
the
learned
trial
judge
on
this
aspect
of
her
judgment.
On
the
other
hand,
I
have
some
difficulty
in
accepting
that
paragraph
68(1)(a)
governs
the
making
of
the
refund.
With
respect,
I
simply
cannot
read
the
word
overpayment"
as
applying
in
the
circumstances
of
this
case
when
no
overpayment"
of
tax
was
made
by
the
respondent.
The
appellant
attacks
the
decision
below
because
paragraph
68(1)(a)
was
not
pleaded
and
because
the
learned
judge
failed
to
afford
an
opportunity
for
submissions
as
to
its
applicability
before
reaching
her
conclusion.
However
that
may
be,
the
issue
was
fully
addressed
in
this
Court,
as
was
the
possible
application
of
paragraph
68(1)(g)
notwithstanding
its
repeal.
In
my
opinion
the
point
is
governed
by
paragraph
43(e)
of
the
Interpretation
Act.
It
reads:
43.
Where
an
enactment
is
repealed
in
whole
or
in
part,
the
repeal
does
not
(e)
affect
any
investigation,
legal
proceeding
or
remedy
in
respect
of
any
right,
privilege,
obligation
or
liability
referred
to
in
paragraph
(c)
or
in
respect
of
any
punishment,
penalty
or
forfeiture
referred
to
in
paragraph
(d),
and
an
investigation,
legal
proceeding
or
remedy
as
described
in
paragraph
(e)
may
be
instituted,
continued
or
enforced,
and
the
punishment,
penalty
or
forfeiture
may
be
imposed
as
if
the
enactment
had
not
been
so
repealed.
This
paragraph
appears
to
preserve
from
extinguishment
"any
.
.
.
remedy
in
respect
of
any
right.
.
.
referred
to
in
paragraph
(c)".
The
"remedy"
here
is
to
be
found
in
the
refund
provisions
of
paragraph
68(1)(g).
Accordingly,
the
repeal
of
that
paragraph
did
not
affect
the
remedy
in
respect
of
the
accrued
or
accruing
right
to
a
refund.
The
remedy
in
paragraph
68(1)(g)
may,
therefore,
be
instituted,
continued
or
enforced
for
the
purpose
of
effecting
the
refund
to
which
the
respondent
is
entitled
by
virtue
of
paragraph
43(c)
of
the
Interpretation
Act,
notwithstanding
the
repeal
of
paragraph
68(1)(g)
on
March
4,
1986.
In
the
result,
I
would
dismiss
this
appeal
with
costs.
Appeal
dismissed.
Berl
Baron
and
Howard
Baron,
C.A.
[Indexed
as:
Baron
(B.)
v.
Canada
(No.
1)]
Federal
Court
of
Appeal
(Pratte,
Marceau
and
Hugessen,
JJ.A.),
November
28,
1990
(Court
Nos.
A-618-89/A-620-89
for
the
cases
of
the
first
appellant
and
A-619-89/A-621-89
and
for
those
of
the
second
appellants),
on
appeal
from
judgments
of
the
Federal
Court-Trial
Division,
reported
[1990]
1
C.T.C.
84.
Income
tax—Federal—Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
and
S.C.
1986,
c.
6,
section
121—231.3(1)
to
(5)
incl.—Constitution
Act,
1982—7,
8,
III—2—Québec
Professional
Code,
C-26—87(3)—Québec
Chartered
Accountants
Code
of
Ethics,
R.S.Q.
These
appeals
are
from
judgments
of
the
Trial
Division
dismissing
attacks
upon
searches
and
seizures
effected
under
the
authority
of
warrants
issued
pursuant
to
section
231.3.
In
that
Court,
the
appellants'
arguments
were
considered
under
five
headings:
(1)
the
judge
issuing
the
warrants
has
no
discretion
under
subsection
231.3(3);
(2)
under
subsection
231.3(5)
wholesale
searches
and
seizures
can
take
place
without
adequate
authorization;
(3)
reasonable
and
probable
grounds
are
not
required,
only
the
lesser
test
of
reasonableness;
(4)
two
avenues
of
obtaining
warrants
exist,
one
through
provincial
courts
and
the
other
through
the
Federal
Court,
and
the
appeal
procedures
differ;
section
231.3
therefore
offends
section
15
of
the
Charter;
and
(5)
warrants
are
invalid
when
they
do
not
contain
a
clause
protecting
documents
subject
to
solicitor-client
privilege
and/or
accountant-client
confidential
relationship.
In
the
Trial
Division,
Reed,
J.
held
that,
as
all
but
one
of
these
arguments
have
been
before
various
courts
and
some
appeals
had
been
filed,
her
decision
might
only
serve
to
hold
the
arguments
in
abeyance
until
the
appeals
were
decided.
Nevertheless,
she
analyzed
the
issues
in
depth
and
found
as
follows:
(1)
as,
in
fact,
there
was
no
abuse
in
the
present
case,
the
point
was
academic;
(2)
the
Print
Three
case,
binding
on
the
Trial
Division,
found
that
subsection
231.3
met
the
deficiencies
earlier
found
in
the
provisions
it
was
designed
to
replace
and
that
subsection
231.3(5)
met
the
test
of
reasonableness
and
is
not
in
violation
of
the
Charter;
(3)
"
reasonable"
subsumes
"probable";
(4)
such
discrimination
as
there
may
be
is
not
protected
by
the
Charter;
and
(5)
as
proper
procedures
for
execution
of
the
seizures
was
followed
and
as
applications
for
interpretation
of
the
solicitor-client
issue
to
the
Superior
Court
of
Québec
were
withdrawn,
this
argument
was
rejected.
The
net
result
was
that
the
motions
and
applications
of
the
appellants
were
dismissed.
HELD:
The
procedures
under
examination
were
clearly
criminal
and
full
protection
of
the
Charter
applied.
The
word
"shall"
is
uniquely
used
in
the
Income
Tax
Act.
Normally
this
word
is
imperative,
and
the
arguments
presented
for
a
more
permissive
reading
are
not
sufficient
in
the
constitutional
scrutiny
of
a
text
adopted
by
Parliament.
Nothing
in
the
context
of
subsection
231.3(3)
would
render
an
imperative
interpretation
of
"shall"
inconsistent
with
the
rest
of
the
section
or
make
it
irrational
or
meaningless.
The
words
"may"
and
"shall"
are
used
in
the
section,
evidently
chosen
deliberately.
The
section
was
changed
from
its
predecessor
which
was
permissive
and
the
change
must
be
regarded
as
intentional.
The
Bill
of
Rights,
if
it
still
has
a
role
to
play,
can
surely
not
validate
legislation
inadequate
under
the
Charter.
The
absence
of
judicial
discretion
is
determinative
of
contravention
of
the
Charter.
Thus
section
231.3
is
of
no
force
or
effect.
The
standard
of
probability
remains
inherent
in
that
of
reasonableness
and
the
Charter
is
not
breached
by
the
absence
of
the
former.
There
is
a
line,
however
narrow,
between
a
reasonable
belief
that
evidence
may
be
found
and
a
reasonable
belief
that
evidence
is
to
be
found,
and
only
the
latter
is
acceptable
in
meeting
the
Charter’s
demands.
Paragraph
231.3(3)(b)
is
inadequate
and
inoperative.
The
point
about
different
routes
of
appeal
for
warrants
from
different
sources
being
offensive
to
the
equal
rights
provision
of
the
Charter
was
not
pursued.
The
Court's
decision
in
Solvent
Petroleum
is
sound
authority
for
rejecting
the
contention
that
the
wording
of
subsection
231.3(5)
is
too
broad
and
gives
virtually
unfettered
discretion
to
the
seizing
officer.
As
to
privilege
between
solicitor
and
client,
it
must
be
recognized
in
fact
and
in
practice
but
it
need
not
be
expressed
in
the
warrant.
The
confidentiality
between
accountant
and
client,
on
the
other
hand,
is
only
a
provision
of
Québec
law
and
is
irrelevant
to
federal
income
tax
legislation.
On
these
points
the
trial
judge
was
correct.
Section
231.3
is
of
no
force
or
effect
as
it
is
inconsistent
with
sections
7
and
8
of
the
Charter.
The
judgment
of
the
trial
judge
reversed.
Appeals
allowed.
[For
an
Editorial
Note
to
this
case,
see
page
3801.]
Guy
Du
Pont
and
André
Serero
for
the
appellant.
Pierre
Loiselle
for
the
respondent.
Cases
referred
to:
Knox
Contracting
Ltd.
v.
Canada,
[1990]
2
C.T.C.
262;
90
D.T.C.
6447;
110
N.R.
171;
McKinlay
Transport
Ltd.
v.
Canada,
[1990]
1
S.C.R.
627;
[1990]
2
C.T.C.
103;
90
D.T.C.
6243;
Solvent
Petroleum
Extraction
Inc.
v.
M.N.R.,
[1989]
2
C.T.C.
177;
89
D.T.C.
5381;
Hunter
v.
Southam,
[1984]
2
S.C.R.
145;
11
D.L.R.
(4th)
641;
Julius
v.
Bishop
of
Oxford
(1880),
5
A.C.
214;
Reference
re
Language
Rights
under
Manitoba
Act,
[1985]
1
S.C.R.
721;
19
D.L.R.
(4th)
1;
Kruger
Inc.
v.
M.N.R.,
[1984]
2
F.C.
535;
[1984]
C.T.C.
506;
84
D.T.C.
6478;
Singh
v.
Canada
(M.E.I.),
[1985]
1
S.C.R.
177;
17
D.L.R.
(4th)
422;
Kourtessis
v.
M.N.R.,
[1990]
1
C.T.C.
241;
89
D.T.C.
5464;
Descôteaux
v.
Mierzwinski,
[1982]
1
S.C.R.
860;
141
D.L.R.
(3d)
590;
Goguen
v.
Shannon,
50
C.C.C.
(3d)
45
(N.B.C.A.);
Nima
v.
Mclnnes,
[1989]
2
W.W.R.
634
(B.C.S.C.);
Canada
v.
Aquarius
Computer,
[1989]
O.J.
No.
1935
(Ont.
H.C.J.).
Hugessen,
J.A.:
Introduction
These
four
appeals
are
from
judgments
of
the
Trial
Division
dismissing
a
series
of
attacks
upon
searches
and
seizures
effected
on
the
authority
of
warrants
issued
under
section
231.3
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
Three
of
the
proceedings
in
the
Trial
Division
attacked
the
warrants
themselves
while
the
fourth
sought
a
declaration
of
invalidity
of
the
statutory
provisions
under
which
they
were
issued.
All
raised
the
same
questions
and
were
dealt
with
by
a
single
set
of
reasons
in
the
Trial
Division.
It
is
convenient
to
do
likewise
here.
For
ready
reference
I
reproduce
here
in
its
entirety
the
statutory
text
under
which
the
search
warrants
were
issued
and
which
lies
at
the
centre
of
this
litigation:
231.3
(1)
A
judge
may,
on
ex
parte
application
by
the
Minister,
issue
a
warrant
in
writing
authorizing
any
person
named
therein
to
enter
and
search
any
building,
receptacle
or
place
for
any
document
or
thing
that
may
afford
evidence
as
to
the
commission
of
an
offence
under
this
Act
and
to
seize
and,
as
soon
as
practicable,
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
231.3
(1)
Sur
requête
ex
parte
du
ministre,
un
juge
peut
décerner
un
mandat
écrit
qui
autorise
toute
personne
qui
y
est
nommée
à
pénétrer
dans
tout
bâtiment,
contenant
ou
endroit
et
y
perquisitionner
pour
y
chercher
des
documents
ou
choses
qui
peuvent
constituer
des
éléments
de
preuve
de
la
perpétration
d'une
infraction
à
la
présente
loi,
à
saisir
ces
documents
ou
choses
et,
dès
que
matériellement
possible,
soit
à
les
apporter
au
juge
ou,
en
cas
d'incapacité
de
celui-ci,
à
un
autre
juge
du
même
tribunal,
soit
à
lui
en
faire
rapport,
pour
que
le
juge
en
dispose
conformément
au
présent
article.
(2)
An
application
under
subsection
(1)
shall
be
supported
by
information
on
oath
establishing
the
facts
on
which
the
application
is
based.
(2)
La
requête
visée
au
paragraphe
(1)
doit
être
appuyée
par
une
dénonciation
sous
serment
qui
expose
les
faits
au
soutien
de
la
requête.
(3)
A
judge
shall
issue
the
warrant
referred
to
in
subsection
(1)
where
he
is
satisfied
that
there
are
reasonable
grounds
to
believe
that
(a)
an
offence
under
this
Act
has
been
committed;
(b)
a
document
or
thing
that
may
afford
evidence
of
the
commission
of
the
offence
is
likely
to
be
found;
and
(c)
the
building,
receptacle
or
place
specified
in
the
application
is
likely
to
contain
such
a
document
or
thing.
(3)
Le
juge
saisi
de
la
requête
décerne
le
mandat
mentionné
au
paragraphe
(1)
s’il
est
convaincu
qu'il
existe
des
motifs
raisonnables
de
croire
ce
qui
suit:
a)
une
infraction
prévue
par
la
présente
loi
a
été
commise;
b)
il
est
vraisemblable
de
trouver
des
documents
ou
choses
qui
peuvent
constituer
des
éléments
de
preuve
de
la
perpétration
de
l'infraction;
c)
le
bâtiment,
contenant
ou
endroit
précisé
dans
la
requête
contient
vraisemblablement
de
tels
documents
ou
choses.
(4)
A
warrant
issued
under
subsection
(1)
shall
refer
to
the
offence
for
which
it
is
issued,
identify
the
building,
receptacle
or
place
to
be
searched
and
the
person
alleged
to
have
committed
the
offence
and
it
shall
be
reasonably
specific
as
to
any
document
or
thing
to
be
searched
for
and
seized.
(4)
Un
mandat
décerné
en
vertu
du
paragraphe
(1)
doit
indiquer
l'infraction
pour
laquelle
il
est
décerné,
dans
quel
bâtiment,
contenant
ou
endroit
perquisitionner
ainsi
que
la
personne
accusée
d’avoir
commis
l'infraction.
Il
doit
donner
suffisamment
de
précisions
sur
les
documents
ou
choses
à
chercher
et
à
saisir.
(5)
Any
person
who
executes
a
warrant
under
subsection
(1)
may
seize,
in
addition
to
the
document
or
thing
referred
to
in
subsection
(1),
any
other
document
or
thing
that
he
believes
on
reasonable
grounds
affords
evidence
of
the
commission
of
an
offence
under
this
Act
and
shall
as
soon
as
practicable
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
who
issued
the
warrant
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
(5)
Quiconque
exécute
un
mandat
décerné
en
vertu
du
paragraphe
(1)
peut
saisir,
outre
les
documents
ou
choses
mentionnés
à
ce
paragraphe,
tous
autres
documents
ou
choses
qu'il
croit,
pour
des
motifs
raisonnables,
constituer
des
éléments
de
preuve
de
la
perpétration
d’une
infraction
à
la
présente
loi.
Il
doit,
dès
que
matériellement
possible,
soit
apporter
ces
documents
ou
choses
au
juge
qui
a
décerné
le
mandat
ou,
en
cas
d'incapacité
de
celui-ci,
à
un
autre
juge
du
même
tribunal,
soit
lui
en
faire
rapport,
pour
que
le
juge
en
dispose
conformément
au
présent
article.
(6)
Subject
to
subsection
(7),
where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
shall,
unless
the
Minister
waives
retention,
order
that
it
be
retained
by
the
Minister,
who
shall
take
reasonable
care
to
ensure
that
it
is
preserved
until
the
conclusion
of
any
investigation
into
the
offence
in
relation
to
which
the
document
or
thing
was
seized
or
until
it
is
required
to
be
produced
for
the
purposes
of
a
criminal
proceeding.
(6)
Sous
réserve
du
paragraphe
(7),
lorsque
des
documents
ou
choses
saisis
en
vertu
du
paragraphe
(1)
ou
(5)
sont
apportés
à
un
juge
ou
qu'il
en
est
fait
rapport
à
un
juge,
ce
juge
ordonne
que
le
ministre
les
retienne
sauf
si
celui-ci
y
renonce.
Le
ministre
qui
retient
des
documents
ou
choses
doit
en
prendre
raisonnablement
soin
pour
s'assurer
de
leur
conservation
jusqu'à
la
fin
de
toute
enquête
sur
l'infraction
en
rapport
avec
laquelle
les
documents
ou
choses
on
été
saisis
ou
jusqu’à
ce
que
leur
production
soit
exigée
aux
fins
d’une
procédure
criminelle.
(7)
Where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
may,
of
his
own
motion
or
on
summary
application
by
a
person
with
an
interest
in
the
document
or
thing
on
three
clear
days'
notice
of
application
to
the
Deputy
Attorney
General
of
Canada,
order
that
the
document
or
thing
be
returned
to
the
person
from
whom
it
was
seized
or
the
person
who
is
otherwise
legally
entitled
thereto
if
the
judge
is
satisfied
that
the
document
or
thing
(a)
will
not
be
required
for
an
investigation
or
a
criminal
proceeding;
or
(b)
was
not
seized
in
accordance
with
the
warrant
or
this
section.
(7)
Le
juge
à
qui
des
documents
ou
choses
saisis
en
vertu
du
paragraphe
(1)
ou
(5)
sont
apportés
ou
à
qui
il
en
est
fait
rapport
peut,
d'office
ou
sur
requête
sommaire
d’une
personne
ayant
un
droit
dans
ces
documents
ou
choses
avec
avis
au
sous-procureur
général
du
Canada
trois
jours
francs
avant
qu'il
y
soit
procédé,
ordonner
que
ces
documents
ou
choses
soient
restitués
à
la
personne
à
qui
ils
ont
été
saisis
ou
à
la
personne
qui
y
a
légalement
droit
par
ailleurs,
s’il
est
convaincu
que
ces
documents
ou
choses:
a)
soit
ne
seront
pas
nécessaires
à
une
enquête
ou
à
une
procédure
criminelle;
b)
soit
n'ont
pas
été
saisis
conformément
au
mandat
ou
au
présent
article.
(8)
The
person
from
whom
any
document
or
thing
is
seized
pursuant
to
this
section
is
entitled,
at
all
reasonable
times
and
subject
to
such
reasonable
conditions
as
may
be
imposed
by
the
Minister,
to
inspect
the
document
or
thing
and
to
obtain
one
copy
of
the
document
at
the
expense
of
the
Minister.
(8)
La
personne
à
qui
des
documents
ou
choses
sont
saisis
conformément
au
présent
article
a
le
droit,
en
tout
temps
raisonnable
et
aux
conditions
raisonnables
que
peut
imposer
le
ministre,
d'examiner
ces
documents
ou
choses
et
d’obtenir
reproduction
des
documents
au
frais
du
ministre
en
une
seule
copie.
The
Nature
of
the
Search
and
Seizure
Authorized
by
Section
231.3
As
a
preliminary
matter,
it
is
as
well
to
make
clear
at
the
outset
that
in
my
opinion
we
are
dealing
with
procedures
that
are
criminal
in
their
nature.
It
is
not
necessary
at
this
stage
to
characterize
in
constitutional
terms
the
source
of
Parliament’s
legislative
power,
a
question
on
which
the
Supreme
Court
has
recently
divided
and
which
awaits
a
definitive
resolution
by
a
majority
of
the
members
of
that
Court.
(See
Knox
Contracting
Ltd.
v.
Canada,
[1990]
2
C.T.C.
262;
90
D.T.C.
6447;
110
N.R.
171.)
It
is
enough
simply
to
read
the
section
under
attack
and
its
repeated
reference
to
"
offence"
to
realize
that
the
section
is
concerned
with
the
detection
and
prosecution
of
crime,
albeit
a
limited
category
of
crime,
namely
offences
under
the
Income
Tax
Act.
This
makes
the
legislation
different
in
kind
from
the
type
of
administrative
enforcement
mechanisms
found
in
adjacent
sections
of
the
Income
Tax
Act
such
as
were
upheld
by
the
Supreme
Court
in
McKinlay
Transport
Ltd.
v.
Canada,
[1990]
1
S.C.R.
627;
[1990]
2
C.T.C.
103;
90
D.T.C.
6243.
The
requirements
of
a
self-reporting
and
self-assessing
income
tax
system
may
justify
an
easing
of
Charter
standards
where
the
primary
purpose
of
a
search
is
simply
to
ensure
that
taxes
are
paid
as
and
when
due.
Where
as
here,
however,
we
are
dealing
with
provisions
whose
stated
aim
is
the
discovery
and
preservation
of
evidence
"for
the
purpose
of
a
criminal
proceeding"
nothing
less
than
the
full
panoply
of
Charter
protection
is
appropriate.
With
that
background
in
mind,
I
now
turn
to
those
grounds
of
attack
argued
by
the
appellants
with
regard
to
which
we
called
on
the
respondents
to
reply.
The
Denial
of
Judicial
Discretion
in
the
Issuance
of
the
Search
Warrant
The
appellants’
first
and
most
serious
attack
concentrates
on
the
use
of
the
word
“
shall”
in
the
first
line
of
subsection
231.3(3).
The
appellants
say,
and
the
respondents
admit,
that
this
is
unique
in
the
Canadian
Statute
book;
all
other
texts
purporting
to
authorize
a
judicial
officer
to
issue
a
search
warrant
are
couched
in
permissive
language,
leaving
to
that
officer
the
ultimate
discretion
as
to
whether
or
not
the
circumstances
justify
an
invasion
of
privacy.
Any
text
which
specifically
excludes
such
residual
judicial
discretion
in
the
issuance
of
a
search
warrant
will,
for
that
reason
alone,
run
afoul
of
sections
7
and
8
of
the
Charter
as
authorizing
an
unreasonable
search
and
seizure
and
one
that
is
in
breach
of
the
principles
of
fundamental
justice.
I
agree.
There
can
be
no
doubt
that
the
use
of
the
word
“
shall”
is
normally
imperative
.
Furthermore,
this
Court,
in
dealing
with
precisely
the
same
statutory
provision,
has
already
held
that
the
words
of
subsection
231.3(3)
leave
no
discretion
in
the
judge.
In
Solvent
Petroleum
Extraction
Inc.
v.
M.N.R.,
[1989]
2
C.T.C.
177;
89
D.T.C.
5381,
Desjardins,
J.A.,
speaking
for
the
Court,
said
(at
page
179
(D.T.C.
5382-83)):
Subsection
231.3(1)
states
that"A
judge
may.
.
.”.
Subsection
231.3(3)
states
that"A
judge
shall.
.
.".
It
would
therefore
appear
from
the
language
of
subsection
231.3(3)
that
if
the
issuing
judge
comes
to
the
conclusion
that
the
conditions
of
paragraphs
231.3(3)
(a),
(b)
and
(c)
are
met,
he
need
not
nor
is
he
permitted
to
consider
whether
there
has
been
a
previous
substantive
voluntary
compliance
by
the
taxpayer,
whether
further
documents
might
be
remitted
voluntarily,
or
whether
the
applicant
for
the
warrants
has
taken
all
reasonable
steps
to
obtain
the
information
from
an
alternative
source
before
applying
for
the
warrants.
In
brief,
if
the
conditions
are
met,
he
must
issue
the
warrant.
The
respondents,
for
their
part,
argue
that
the
following
passage
from
the
trial
judge's
reasons
(page
92
(D.T.C.
6045))
is
a
better
reading
of
the
law
and
should
now
be
followed:
If
it
is
clear
that
the
intention
of
Parliament
was
to
leave
discretion
in
a
judge
to
refuse
to
issue
a
warrant
when
the
search
would
offend
section
8
of
the
Charter,
then
that
interpretation
would
prevail,
over
the
general
rule
of
interpretation
set
out
in
section
11
of
the
Interpretation
Act.
There
is
considerable
jurisprudence
which
holds
that
“shall”
can
be
either
directory
or
mandatory.
This
jurisprudence
might
be
relevant
to
the
interpretation
of
subsection
231.3(3).
More
importantly,
however,
the
Bill
of
Rights
might
play
a
role
so
as
to
require
subsection
231.3(3)
to
be
interpreted
so
as
to
preserve
for
a
judge
discretion,
to
refuse
warrants,
in
the
case
of
abusive
searches
and
seizures.
Section
2
of
the
Act
when
read
together
with
section
1
requires:
Every
law
of
Canada
shall
.
.
be
so
construed
and
applied
as
not
to
abrogate,
abridge
or
infringe
.
.
.
the
right
of
the
individual
to
life,
liberty,
security
of
the
person.
.
.
Alternatively
the
Court's
inherent
power
to
control
the
abuse
of
its
own
process
might
operate
to
enable
a
judge
to
refuse
to
issue
an
abusive
warrant.
See
generally:
R.
v.
Young
(1984),
13
C.C.C.
(3d)
1
(Ont.
C.A.);
R.
v.
Miles
of
Music
Ltd.
(1989),
48
C.C.C.
(3d)
96
(Ont.
C.A.)
and
section
50
of
the
Federal
Court
Act.
These
are
all
speculative
arguments,
however,
and
have
not
been
addressed
by
counsel.
Certainly,
it
seems
to
me
a
judge
would
strive
against
issuing
an
abusive
warrant
which
offended
subsection
8
of
the
Charter,
if
he
or
she
knew,
at
the
time
the
request
was
made,
that
the
warrant
was
abusive.
At
the
very
least,
I
do
not
think
subsection
231.3(3)
precludes
a
judge
from
adding
terms
and
conditions
to
a
warrant
sought.
There
is
nothing
in
subsection
231.3(3)
which
says
that
a
judge
must
issue
a
warrant
in
the
exact
terms
in
which
it
is
sought.
With
respect,
it
seems
to
me
that
there
are
several
things
wrong
with
the
interpretation
proposed
by
the
trial
judge.
In
the
first
place,
and
if
I
understand
her
correctly,
what
she
is
suggesting
in
the
first
part
of
the
quoted
passage
is
precisely
the
kind
of
"reading
down"
against
which
the
Supreme
Court
has
warned.
(See
for
example,
Hunter
v.
Southam,
[1984]
2
S.C.R.
145;
11
D.L.R.
(4th)
641
at
168
(D.L.R.
659.)
Secondly,
while
there
is
indeed
"considerable
jurisprudence"
going
back
to
the
old
case
of
Julius
v.
Bishop
of
Oxford
(1880),
5
A.C.
214,
to
the
effect
that
words
of
empowerment
('may")
can
in
certain
circumstances
import
obligation
("shall"),
there
is
very
little
the
other
way
round:
"shall"
is
rarely
interpreted
to
mean
may".
We
are
here
dealing
not
with
a
piece
of
subordinate
legislation
or
a
statutory
instrument
but
with
the
constitutional
scrutiny
of
a
text
adopted
by
Parliament
itself.
As
was
said
by
the
Supreme
Court
of
Canada
in
Reference
re
Language
Rights
under
Manitoba
Act,
[1985]
1
S.C.R.
721;
19
D.L.R.
(4th)
1
at
737
(D.L.R.
13-14):
As
used
in
its
normal
grammatical
sense,
the
word”
shall”
is
presumptively
imperative.
See
Odgers'
Construction
of
Deeds
and
Statutes
5th
ed.
(1967)
at
p.
377;
The
Interpretation
Act,
1867
(Can.),
c.
1,
s.
6(3);
Interpretation
Act,
R.S.C.
1970,
c.
1-23,
s.
28
("shall
is
to
be
construed
as
imperative".)
It
is
therefore
incumbent
upon
this
Court
to
conclude
that
Parliament,
when
it
used
the
word
“shall”
in
s.
23
of
the
Manitoba
Act,
1870
and
s.
133
of
the
Constitution
Act,
1867,
intended
that
those
sections
be
construed
as
mandatory
or
imperative,
in
the
sense
that
they
must
be
obeyed,
unless
such
an
interpretation
of
the
“shall”
would
be
utterly
inconsistent
with
the
context
in
which
it
has
been
used
and
would
render
the
sections
irrational
or
meaningless:
see,
e.g.
Re
Public
Finance
Corp.
and
Edwards
Garage
Ltd.
(1957),
22
W.W.R.
312
(Alta.
S.C.)
at
p.
317.
[Emphasis
added.]
There
is,
as
it
seems
to
me,
absolutely
nothing
in
the
context
of
section
231.3
of
the
Income
Tax
Act
which
would
render
an
imperative
interpretation
of
the
word
“shall”
in
subsection
(3)
inconsistent
with
the
balance
of
the
section
or
make
it
irrational
or
meaningless.
Indeed,
I
can
see
nothing
in
the
section
which
would
point
to
a
permissive
or
discretionary
meaning
for”
shall”.
On
the
contrary,
the
draughtsman
has
clearly
used
the
permissive
"may"
where
this
is
appropriate
(as
for
example
in
subsections
(1)
and
(5))
and
the
use
of
"shall"
in
subsection
(3)
(as
well,
it
may
be
noted,
as
in
subsection
(6))
has
every
appearance
of
being
a
deliberate
choice.
Furthermore,
the
whole
of
section
231.3
represents
a
change
from
the
previous
law
which
was
couched
in
terms
that
were
clearly
permissive
and
left
a
discretion
in
the
hands
of
the
judge
authorizing
the
seizure.
Also,
as
noted
above,
the
text
of
subsection
231.3(3)
is
unique
and
differs
remarkably
from
all
other
Canadian
search
warrant
provisions
.
I
cannot
view
such
a
change
from
both
previous
and
current
practice
as
being
anything
but
intentional.
With
respect,
I
must
also
take
exception
to
the
trial
judge's
use,
in
the
passage
quoted
above,
of
the
Bill
of
Rights.
While
there
is
clearly
room
for
debate
as
to
the
extent
to
which
the
Bill
may
still
have
a
role
to
play
in
post-
Charter
Canada
(see
Singh
v.
Canada
(M.E.I.),
[1985]
1
S.C.R.
177;
17
D.L.R.
(4th)
422),
that
role
surely
cannot
be
one
of
validating,
by
interpretation,
legislation
which
is
otherwise
inadequate
on
Charter
grounds.
For
constitutional
and
historical
reasons,
the
Bill
of
Rights
employs
an
interpretative
technique
for
the
purpose
of
preserving
and
protecting
the
rights
which
it
enshrines;
it
would
be
a
sorry
irony
indeed
if
it
were
now
to
be
used
to
rescue
infringing
legislation
from
the
effect
of
the
entrenchment
of
those
same
and
other
rights
in
the
Charter.
My
final
comment
on
the
quoted
passage
of
the
trial
judge's
reasons
has
to
do
with
her
invocation
of
the
Court's
power
to
control
abuse
of
the
process,
or
to
add
conditions
to
a
warrant.
With
respect,
it
seems
to
me
that
this
begs
the
question.
If,
as
the
respondents
contend,
paragraphs
(a),
(b)
and
(c)
of
subsection
231.3(3)
are
exhaustive
of
all
the
conditions
precedent
to
a
reasonable
search,
an
application
which
meets
all
those
conditions
cannot
be
an
abuse
of
the
process.
By
the
same
token,
if
the
word
“shall”
in
the
opening
part
of
subsection
231.3(3)
is
to
be
given
its
normal
imperative
construction,
there
can
be
no
power
in
the
judge
to
attach
conditions
to
the
warrant
beyond
those
specifically
set
out
in
the
statute
itself.
Subsections
231.3(1)
and
231.3(4)
set
out
the
contents
of
the
warrant
with
considerable
detail
but
do
not,
in
any
way,
suggest
any
residual
discretion
in
the
issuing
judge
to
attach
other
terms
or
conditions.
In
their
defence
against
the
attack
on
the
mandatory
nature
of
section
231.3,
the
respondents
also
rely,
as
did
the
trial
judge,
on
the
obiter
dictum
of
the
British
Columbia
Court
of
Appeal
in
the
case
of
Kourtessis
v.
M.N.R.,
[1990]
1
C.T.C.
241;
89
D.T.C.
5464.
In
that
case,
the
court
unanimously
dismissed
on
jurisdictional
grounds
an
appeal
against
a
decision
at
first
instance
which
had
upheld
the
validity
of
section
231.3.
A
majority
of
the
Court
went
on,
however,
to
deal
with
the
substantive
grounds
of
attack.
On
the
question
which
concerns
us
at
the
present,
Locke,
J.A.,
after
quoting
the
text
of
subsections
(1),(2),
and
(3)
of
section
231.3
had
this
to
say
(at
page
261
(D.T.C.
5478)):
I
am
of
the
opinion
these
three
subsections
must
be
read
together.
The
crucial
function
of
the
judge
is
to
decide
whether
the
facts
before
him
are
sufficient
to
warrant
an
intrusion
of
privacy.
This
is
discretionary
in
the
judge.
In
order
to
exercise
his
discretion,
the
guidelines
are
set
out
in
subsection
(3).
If
the
evidence
fails
the
standards
of
subsection
(3),
he
will
not
be
satisfied
and
will
decline
to
issue
the
warrant.
If
the
evidence
is
sufficient,
the
statute
says
he
"shall"
issue
the
warrant.
It
is
said
that
this
deprives
the
judge
of
a
discretion.
It
does
not
deprive
him
of
the
discretion
as
to
whether
the
warrant
should
issue
at
all,
and
as
to
which
he
fulfils
his
balance
wheel
function.
It
does
deprive
him
of
a
discretion
as
to
whether
the
warrant
in
fact
issues
after
he
makes
the
primary
essential
decision.
One
might
ask
rhetorically,
and
why
not?
Having
made
the
primary
decision,
surely
the
figurative
stamping
of
the
piece
of
paper
is
unimportant.
What
the
mandatory
word
does
is
to
deprive
the
judge
of
the
discretions
argued
for
in
Paroian—that
it
was
unnecessary
to
issue
the
process
because
the
Minister
already
had
enough
material.
This
is
not
for
the
court
to
say,
but
I
do
not
feel
that
the
standards
of
Hunters.
Southam
have
been
defeated.
The
judge's
crucial
role
has
been
fulfilled
and
nothing
remains
except
to
stamp
the
piece
of
paper.
It
is
thus
true
that
discretion
has
been
impaired
in
an
administrative
aspect,
but
not
at
all
to
impair
the
judge's
primary
function.
It
is
also
plain
he
can
always
attach
conditions
to
the
manner
of
execution
of
the
warrant,
and
this
of
his
own
motion
under
the
doctrine
of
inherent
jurisdiction.
With
respect
to
the
last
sentence
of
the
quoted
passage,
I
can
only
repeat
what
I
have
already
said:
I
do
not
see
how
a
judge
acting
under
an
imperative
statutory
provision
can
invoke
an
inherent
jurisdiction
to
refuse
to
do
precisely
that
which
the
legislation
has
declared
to
be
reasonable
and
has
commanded
him
to
do.
The
attachment
of
conditions
as
to
either
the
issuance
or
the
excution
of
the
warrant
is
not
authorized
by
the
text.
The
earlier
part
of
the
quoted
passage,
if
I
understand
it
correctly,
seems
to
argue
that
judicial
discretion
is
retained
in
so
far
as
the
determination
of
the
conditions
set
out
in
paragraphs
(a),
(b)
and
(c)
is
concerned,
but
that
once
the
judge
is
satisfied
as
to
their
existence
he
has
no
further
discretion.
One
might
quibble
with
the
first
of
those
propositions
on
linguistic
grounds;
I
do
not
think
it
proper
to
characterize
the
formation
of
an
opinion
as
to
the
existence
of
reasonable
grounds
for
belief
in
certain
facts
as
being
in
any
way
the
exercise
of
a
discretion.
It
is
of
course
part
of
a
judicial
decision-making
function
as
to
which,
in
any
given
case,
there
may
be
differences
of
view,
but
that
surely
does
not
make
it
a
matter
of
discretion
any
more
than,
say,
a
finding
of
negligence
is
a
matter
of
discretion.
The
real
nub
of
the
matter,
however,
lies
in
the
second
proposition.
To
sustain
it,
one
must
argue,
as
Counsel
for
respondents
did,
not
merely
that
Parliament
is
entitled
to
set
the
standards
as
to
what
is
reasonable
and
in
accordance
with
the
principles
of
fundamental
justice,
but
also
that,
in
doing
so,
it
may
exclude
any
other
consideration
as
being
irrelevant
to
those
standards.
In
my
view,
this
cannot
be
the
law.
Counsel
for
respondents
lays
great
stress
on
the
fact
that
in
the
landmark
decision
of
Hunter
v.
Southam,
supra,
the
Court
carefully
and
in
detail
laid
down
the
conditions
of
a
reasonable
search
and
seizure
pursuant
to
section
8;
nowhere
amongst
them
did
the
Court
specifically
include
a
condition
that
the
judicial
officer
issuing
the
warrant
should
retain
a
discretion
to
refuse
to
do
so
.
The
question
now
is
to
know
whether
a
requirement
of
judicial
discretion
is
nonetheless
implicit
in
the
standards
of
reasonability
set
out
in
Southam
or,
even
if
it
is
not,
whether
it
forms
part
of
the
principles
of
fundamental
justice
protected
by
section
7.
In
my
view,
it
is
both.
In
the
first
place,
it
will
be
recalled
that
in
Southam
the
Court
was
dealing
with
a
legislative
provision
which,
however
inadequate
on
other
grounds,
left
a
discretion
with
the
officer
authorizing
the
seizure^.
Secondly,
and
as
previously
noted,
at
the
time
of
the
Southam
decision,
all
other
provisions
authorizing
searches
and
seizures
in
Canada
were
couched
in
permissive
language.
Furthermore,
as
the
Court
was
unquestionably
aware,
historically
this
had
always
been
the
case
both
by
statute
and
at
common
law.
Finally
and
most
importantly,
the
Court
in
Southam
laid
great
emphasis
on
the
requirement
that
the
officer
authorizing
the
seizure
be
independent
and
capable
of
acting
judicially
in
balancing
the
competing
interests
of
the
state
and
the
citizen.
That
requirement,
as
it
seems
to
me,
given
the
context
in
which
Southam
was
decided,
necessarily
implies
an
ability
and
a
need
to
exercise
a
judicial
discretion
in
the
authorization
process.
Accordingly,
I
conclude
that
a
requirement
for
a
residual
judicial
discretion
to
refuse
to
issue
a
search
warrant,
or
to
attach
conditions
to
a
warrant
when
issued,
is
implicit
in
the
decision
in
Southam
as
a
prerequisite
to
a
reasonable
search
and
seizure
in
accordance
with
section
8
of
the
Charter.
Even
more
important
than
Southam
for
the
purposes
of
the
present
discussion,
however,
is
the
decision
of
the
Supreme
Court
in
Descôteaux
v.
Mierzwinski,
[1982]
1
S.C.R.
860;
141
D.L.R.
(3d)
590.
That
was
a
pre-Charter
case
and
concerned
the
issuance
of
a
search
warrant
under
the
Criminal
Code
to
search
a
lawyer's
office.
Lamer,
J.
(as
he
then
was),
speaking
for
a
unanimous
Court,
discussed
at
length
the
role
of
judicial
discretion
in
the
issuance
of
search
warrants.
The
following
passage
from
his
reasons
is
critical
(page
888
(D.L.R.
615-17)):
Some
say
that
the
justice
of
the
peace
has
no
discretion
to
refuse
to
issue
a
search
warrant
or
to
impose
terms
of
execution
once
the
requirements
of
form
and
substance
in
s.
443
have
been
met.
They
would
argue
that
in
s.
443
the
word“
may"
means
"must"
and
does
not
confer
any
discretion.
According
to
this
interpretation,
the
justice
of
the
peace
may
issue
a
warrant
only
if
he
is
satisfied
that
there
is
reasonable
ground
to
believe
that
one
of
the
things
provided
for
in
s.
443(1)
is
to
be
found
in
the
place
sought
to
be
searched,
but
must
do
so
as
soon
as
he
is
so
satisfied,
and
the
only
condition
of
execution
on
the
premises
that
he
may
impose
is
set
out
in
s.
444
of
the
Code:
444.
A
warrant
issued
under
section
443
shall
be
executed
by
day,
unless
the
justice,
by
the
warrant,
authorizes
execution
of
it
by
night.
Others,
on
the
contrary,
would
say
that
generally
the
justice
of
the
peace
has
the
discretion
to
refuse
the
warrant,
so
long
as
this
discretion
is
exercised
judicially
This
fact
itself
serves
to
limit
the
scope
to
be
put
on
this
Court's
decision
in
Solvent
Petroleum
Extraction
Inc.
v.
M.N.R.,
supra.
The
point
now
being
discussed
was
not
argued
in
that
case.
Thus,
when
Desjardins,
J.A.
said
(at
page
181
(D.T.C.
5384))
"there
is
no
doubt
that
subsection
231.3(3)
meets
these
minimum
standards",
she
was
referring
to
the
standards
specifically
enumerated
by
the
Court
in
Southam
from
which
she
had
just
quoted.
Subsection
10(3)
of
the
Combines
Investigation
Act
which
provided
that
an
authorization
to
search
may
be
granted"
by
a
member
of
the
Restrictive
Trade
Practices
Commission.
and
so
long
as
the
decision
to
refuse
the
warrant
is
not
capricious
or
arbitrary
(Carter,
R.F.,
The
Law
Relating
to
Search
Warrants
(1939)
at
p.
52;
Fontana,
J.A.,
The
Law
of
Search
Warrants
in
Canada
(1974)
at
pp.
7
and
51
et
seq.
;
Re
Pacific
Press
Ltd,
and
the
Queen
(1977),
37
C.C.C.
(2d)
487,
38
C.R.N.S.
295,
[1977]
5
W.W.R.
507).
I
come
down
on
the
side
of
the
discretion,
as
it
allows
more
effective
judicial
control
of
the
police.
Searches
are
an
exception
to
the
oldest
and
most
fundamental
principles
of
the
common
law,
and
as
such
the
power
to
search
should
be
strictly
controlled.
It
goes
without
saying
that
the
justice
may
sometimes
be
in
a
poor
position
to
assess
the
need
for
the
search
in
advance.
After
all,
searches,
while
constituting
a
means
of
gathering
evidence,
are
also
an
investigative
tool.
It
will
often
be
difficult
to
determine
definitively
the
probative
value
of
a
particular
thing
before
the
police
investigation
has
been
completed.
Be
that
as
it
may,
there
are
places
for
which
authorization
to
search
should
generally
be
granted
only
with
reticence
and,
where
necessary,
with
more
conditions
attached
than
for
other
places.
One
does
not
enter
a
church
in
the
same
way
as
a
lion’s
den,
or
a
warehouse
in
the
same
way
as
a
lawyer's
office.
One
does
not
search
the
premises
of
a
third
party
who
is
not
alleged
to
have
participated
in
the
commission
of
a
crime
in
the
same
way
as
those
of
someone
who
is
the
subject
of
such
an
allegation.
(See
on
this
subject
Fontana,
J.A.,
The
Law
of
Search
Warrants
in
Canada,
p.
174.)
The
justice
of
the
peace,
in
my
view,
has
the
authority,
where
circumstances
warrant,
to
set
out
execution
procedures
in
the
search
warrant;
I
would
even
go
so
far
as
to
say
that
he
has
the
right
to
refuse
to
issue
the
warrant
in
special
circumstances,
such
as
those
found
in
Re
Pacific
Press
Ltd.,
and
the
Queen,
supra.
That
case
involved
a
search
of
a
newspaper
office
for
information
gathered
by
the
newspaper
staff.
Neither
the
newspaper
staff
nor
the
newspaper
itself
were
accused
of
having
been
involved
in
the
commission
of
an
offence.
In
view
of
the
special
situation
of
a
newspaper
in
light
of
ss.
1(f)
and
2
of
the
Canadian
Bill
of
Rights,
R.S.C.
1970,
App.
Ill,
Nemetz,
C.J.
of
the
British
Columbia
Supreme
Court
quashed
the
search
warrant
issued
by
the
justice
of
the
peace,
concluding
as
follows
(at
page
495):
The
issuing
of
any
search
warrant
is
a
serious
matter,
especially
when
this
issuance
against
a
newspaper
may
have,
as
it
did,
the
effect
of
impeding
its
publication.
To
use
the
words
of
my
distinguished
predecessor
in
United
Distillers
Ltd.
(1948),
88
C.C.C.
338,
[1947]
3
D.L.R.
900,
the
Justice
of
the
Peace
“should
have
reasonable
information
before
him
to
entitle
him
to
judicially
decide
whether
such
warrant
should
issue
or
not".
-In
my
opinion,
no
such
reasonable
information
was
before
him
since
there
was
no
material
to
show:
1.
whether
a
reasonable
alternative
source
of
obtaining
the
information
was
or
was
not
available,
and
2.
if
available,
that
reasonable
steps
had
been
taken
to
obtain
it
from
that
alternative
source.
In
my
opinion,
the
bringing
of
an
application
for
a
search
warrant
in
these
circumstances
was
an
abuse
of
the
process
of
the
Court.
I,
therefore,
quash
the
warrants.
Re
Pacific
Press
Ltd.
involved
a
search
for
things
provided
for
in
para.
(b)
of
s.
443
(1),
that
is,
evidence;
it
goes
without
saying
that
the
same
requirements
do
not
apply
in
the
case
of
things
provided
for
in
para.
(a)
and
(c)
of
s.443(1).
It
could
be
advanced
that
the
two
conditions
set
out
by
Nemetz
C.J.
should
be
met
before
a
warrant
is
issued
whenever
a
search
is
sought
to
be
conducted,
under
443(1)(b),
of
premises
occupied
by
an
innocent
third
party
which
are
not
alleged
by
the
information
to
be
connected
in
any
way
with
the
crime.
It
is
not
necessary
for
purposes
of
this
appeal
to
decide
that
point.
It
is
sufficient
to
say
that
in
situations
such
as
the
one
in
Re
Pacific
Press
Ltd.,
where
the
search
would
interfere
with
rights
as
fundamental
as
freedom
of
the
press,
and,
as
in
the
case
at
bar,
a
lawyer's
client's
right
to
confidentially,
the
justice
of
the
peace
may
and
should
refuse
to
issue
the
warrant
if
these
two
conditions
have
not
been
met,
lest
he
exceeds
the
jurisdiction
he
had
ab
initio.
I
would
add
one
qualification
to
these
two
conditions.
The
reasonable
alternative
referred
to
is
not
an
alternative
to
the
method
of
proof
but
to
the
benefits
of
search
and
seizure
of
the
evidence.
As
I
have
already
stated,
a
search
warrant
is
not
only
a
means
of
gathering
evidence
but
also
an
investigative
tool.
Therefore
a
determination
of
what
is
reasonable
in
each
case
will
take
into
account
the
fact
that
a
search
makes
it
possible
not
only
to
seize
evidence
but
also
to
ascertain
that
it
exists,
and
even
sometimes
that
the
crime
was
in
fact
committed
and
by
whom.
Seizure
makes
it
possible
to
preserve
the
evidence.
Moreover,
even
if
the
conditions
are
met,
the
justice
of
the
peace
must
set
out
procedures
for
the
execution
of
the
warrant
that
reconcile
protection
of
the
interests
this
right
is
seeking
to
promote
with
protection
of
those
the
search
power
is
seeking
to
promote,
and
limit
the
breach
of
this
fundamental
right
to
what
is
strictly
inevitable.
This
is
also
true
of
searches
under
443(1)(a)
or
(c),
as
soon
as
they
threaten
a
fundamental
right.
[Emphasis
added.]
I
derive
from
this
passage
the
proposition
not
only
that
the
attaching
of
conditions
to
a
search
warrant
is
a
necessary
and
essential
part
of
the
exercise
of
judicial
discretion
but,
even
more
importantly,
that
the
very
existence
of
such
discretion
is
a
prerequisite
to
the
reasonableness
of
the
search
and
to
our
notions
of
fundamental
justice.
Descôteaux,
supra,
also
establishes,
in
my
view,
that
any
legislative
attempt
to
exhaustively
define
and
circumscribe
the
limits
of
what
may
be
a
reasonable
search
is
doomed
to
failure.
In
the
passage
quoted,
Lamer,
J.
dealt
specifically
with
searches
of
lawyers'
offices
and
newspaper
offices
and
held
that
in
those
circumstances
the
justice
"may
and
should
refuse
to
issue
the
warrant"
if
certain
conditions
were
not
met.
Clearly,
however,
Lamer,
J.
did
not
suggest
that
this
list
of
circumstances
was
limitative.
On
the
contrary,
he
expressly
left
it
open
(‘in
situations
such
as
.
.
.").
In
my
view,
the
categories
of
unreasonable
searches
are
not
closed
and
can
never
be
so.
Legislating
closed
categories
of
unreasonableness
is
not
only
impossible;
it
is
also
likely,
through
the
operation
of
simple
human
fallibility,
to
give
rise
to
absurdities.
The
search
and
seizure
provisions
of
the
Income
Tax
Act
provide
an
excellent
example.
In
section
488
of
the
Criminal
Code,
Parliament
has
enshrined
the
old
common
law
rule
that,
without
special
authorization,
no
search
warrant
shall
be
executed
at
night.
The
reason
for
this
must
surely
be
that
the
law
views,
and
has
always
viewed,
night
searches
as
an
unreasonable
invasion
of
the
citizen's
privacy
unless
there
are
special
circumstances
making
such
searches
permissible.
Section
488,
however,
by
its
very
terms,
only
applies
to
search
warrants
issued
under
sections
487
and
487.1
of
the
Criminal
Code.
There
is
no
equivalent
limitation
on
the
execution
of
search
warrants
issued
under
section
231.3
of
the
Income
Tax
Act.
The
absurdity
to
which
the
respondents'
position
leads
us,
therefore,
is
that,
in
Parliament’s
view,
a
night
search
for
terrorist
bombs
is
prima
facie
unreasonable
while
one
for
books
of
account
is
not.
Indeed,
although
the
point
was
not
raised
before
us,
it
is
at
the
least
arguable
that
section
231.3
is
invalid
on
the
sole
ground
that
it
allows
night
searches
without
specific
judicial
authorization.
Parliament,
in
my
opinion,
is
both
legally
and
factually
incapable
of
exhaustively
defining
unreasonable
searches.
The
ultimate
protection
for
the
citizen
against
such
searches
lies
in
the
vigilance
of
the
issuing
judge
and
in
his
power
to
refuse
to
issue
the
warrant
even
where
all
the
conditions
established
by
Parliament
have
been
met.
For
Parliament
to
say
and
to
mean
that
the
judge
"shall"
issue
the
warrant
no
matter
what
the
circumstances
is
to
sanction
unreasonable
searches
and
seizures
and
is
contrary
to
our
long-established
principles
of
fundamental
justice.
Section
231.3
is
accordingly
of
no
force
or
effect.
The
foregoing
is
enough
to
dispose
of
the
present
appeal.
However,
since
in
my
view
the
legislation
must
be
rewritten,
it
would
be
useful
to
discuss
briefly
the
other
grounds
argued
by
the
appellants.
The
Elimination
of
the
Standard
of
Probability
It
will
be
recalled
that
the
standard
set
by
subsection
231.3(3)
is
that
of
"reasonable
grounds
to
believe”.
The
appellants
argue
that
this
is
not
good
enough.
The
minimum
standard
must
be”
"reasonable
and
probable
grounds”.
The
appellants
focus
on
the
following
passage
from
the
decision
in
Southam,
supra,
at
page
168
(D.L.R.
659):
In
cases
like
the
present,
reasonable
and
probable
grounds,
established
upon
oath,
to
believe
that
an
offence
has
been
committed
and
that
there
is
evidence
to
be
found
at
the
place
of
the
search,
constitutes
the
minimum
standard,
consistent
with
s.
8
of
the
Charter,
for
authorizing
search
and
seizure.
By
eliminating
the
word
"probable"
from
the
legislative
standard,
it
is
argued,
Parliament
has
suppressed
the
"more
likely
than
not”
standard
of
proof
to
be
applied
by
the
issuing
judge.
I
do
not
agree.
In
the
first
place,
it
seems
to
me
that,
as
a
matter
of
simple
linguistic
construction,
the
word
"probable"
in
the
phrase
“reasonable
and
probable
grounds
to
believe”
adds
nothing.
In
this
connection,
it
is
convenient
to
refer
to
the
standard
dictionary
definition
in
both
official
languages.
The
Shorter
Oxford
Dictionary
gives
the
following
modern
meaning:
Probable
2.
Such
as
to
approve
itself
to
the
mind;
worthy
of
acceptance
or
belief;
rarely
in
bad
sense,
specious,
colourable.
(Now
merged
in
3.)—1872.
3.
Having
an
appearance
of
truth;
that
may
reasonably
be
expected
to
happen,
or
to
prove
true;
likely
1606.
[Emphasis
added.]
Even
more
interesting
is
Robert's
indication
of
an
archaic
definition
for
the
French
"probable":
Probable
1.
Vx.
Opinion
probable,
qui
sans
exclure
la
possibilité
d'une
autre
opinion,
ne
présente
cependant
rien
de
contraire
à
la
raison.—Relig.
Opinion
probable:
opinion
fondée
sur
des
raisons
sérieuses
quoique
non
décisives.
[Emphasis
added.]
This
may
very
well
explain
how
the
word
has
come
to
be
associated
historically
by
lawyers
with
the
word
reasonable”.
Like
the
second
member
of
such
other
hallowed
English
legal
phrases
as
"null
and
void",
"good
and
valid”,
“last
will
and
testament"
etc.,
it
does
nothing.
Second,
and
more
significant,
this
view
of
the
matter
is
confirmed
by
the
judgment
in
Southam
itself.
In
a
passage
preceding
by
a
few
lines
the
one
quoted,
supra,
Dickson,
J.,
(as
he
then
was)
speaking
for
the
Court
said
this
at
page
167
(D.L.R.
658):
The
common
law
required
evidence
on
oath
which
gave
"strong
reason
to
believe”
that
stolen
goods
were
concealed
in
the
place
to
be
searched
before
a
warrant
would
issue.
Section
443
of
the
Criminal
Code
authorizes
a
warrant
only
where
there
has
been
information
upon
oath
that
there
is"
reasonable
ground
to
believe”
that
there
is
evidence
of
an
offence
in
the
place
to
be
searched.
The
American
Bill
of
Rights
provides
that
“no
Warrants
shall
issue,
but
upon
probable
cause,
supported
by
Oath
or
affirmation.
.
.".
The
phrasing
is
slightly
different
but
the
standard
in
each
of
these
formulations
is
identical.
[Emphasis
added.]
Finally
and
even
if
I
am
wrong
in
my
view
as
to
the
force
to
be
given
to
the
word
"probable"
in
the
phrase
"reasonable
and
probable”,
it
is
my
further
opinion
that
a
grammatical
analysis
of
subsection
231.3(3)
shows
that
in
fact
the
evidentiary
burden
of
"more
likely
than
not"
has
been
met
or
exceeded.
Eliminating
the
unnecessary
words
for
the
purpose
of
this
analysis,
the
subsection
provides
for
the
issuance
of
a
warrant
when
a
judge:
.
.
.
is
satisfied
that
there
are
reasonable
grounds
to
believe
that:
(a)
an
offence.
.
.
has
been
committed;
(b)
a
document
.
.
.
is
likely
to
found;
and
(c)
a
building
.
.
.
is
likely
to
contain
such
a
document.
There
can
surely
be
no
objection
to
the
standard
set
in
paragraphs
(b)
and
(c)
for
the
word
“likely”
must
have
the
effect
of
importing
the
standard
of
probability
or
"more
likely
than
not".
With
respect
to
paragraph
(a),
the
standard
is
set
even
higher;
the
requirement
is
for
reasonable
grounds
to
believe
that
an
offence
has
been
committed.
Here,
the
reasonable
belief
is
tied
to
the
actual
commission
of
the
offence
and
not
to
a
lower
standard
of
mere
probability.
In
the
upshot,
therefore,
I
find
this
ground
of
attack
to
be
without
merit.
The
Dilution
of
the
Standard
with
Respect
to
the
Probability
of
Finding
Evidence
The
appellants’
attack
here
concentrates
very
narrowly
on
the
wording
of
paragraph
231.3(3)(b),
which
it
is
convenient
to
reproduce:
231.3
(3)
A
judge
shall
issue
the
warrant
referred
to
in
subsection
(1)
where
he
is
satisfied
that
there
are
reasonable
grounds
to
believe
that
(b)
a
document
or
thing
that
may
afford
evidence
of
the
commission
of
the
offence
is
likely
to
be
found;
and
.
.
.
[Emphasis
added.]
The
argument
is
that
the
use
of
the
word
"may"
allows
the
issuance
of
a
search
warrant
on
showing
of
reasonable
grounds
to
believe
in
a
mere
possibility
that
the
thing
to
be
found
will
afford
evidence
of
a
crime.
The
following
passage
from
the
judgment
in
Southam,
supra,
is
relied
on
(at
page
167
(D.L.R.
658)):
The
problem
is
with
the
stipulation
of
a
reasonable
belief
that
evidence
may
be
uncovered
in
the
search.
Here
again
it
is
useful,
in
my
view,
to
adopt
a
purposive
approach.
The
purpose
of
an
objective
criterion
for
granting
prior
authorization
to
conduct
a
search
or
seizure
is
to
provide
a
consistent
standard
for
identifying
the
point
at
which
the
interests
of
the
state
in
such
intrusions
come
to
prevail
over
the
interests
of
the
individual
in
resisting
them.
To
associate
it
with
an
applicant's
reasonable
belief
that
relevant
evidence
may
be
uncovered
by
the
search,
would
be
to
define
the
proper
standard
as
the
possibility
of
finding
evidence.
This
is
a
very
low
standard
which
would
validate
intrusion
on
the
basis
of
suspicion,
and
authorize
fishing
expeditions
of
considerable
latitude.
It
would
tip
the
balance
strongly
in
favour
of
the
state
and
limit
the
right
of
the
individual
to
resist,
to
only
the
most
egregious
intrusions.
I
do
not
believe
that
this
is
a
proper
standard
for
securing
the
right
to
be
free
from
unreasonable
search
and
seizure.
The
argument
seems
to
me
to
be
quite
simply
unanswerable.
The
point
is
an
extremely
narrow
one
but
the
Court
could
not
have
used
clearer
words
to
indicate
that
a
belief
that
evidence
may
be
found
is
not
good
enough.
The
courts
of
three
provinces
have
struck
down
subsection
111(1)
of
the
Customs
Act
whose
English
(but
not
the
French)
version
contained
a
some-
what
similar
wording.
See
Goguen
v.
Shannon,
50
C.C.C.
(3d)
45
(N.B.C.A.);
Nima
v.
McInnes,
[1989]
2
W.W.R.
634
(B.C.S.C.);
Canada
v.
Aquarius
Computer,
[1989]
O.J.
No.
1935
(Ont.
H.C.J.).
While
in
practice,
the
line
must
be
very
thin
between
a
reasonable
belief
that
evidence
may
be
found
and
a
reasonable
belief
that
evidence
is
to
be
found,
the
Supreme
Court
has
made
it
very
plain
that
only
the
second
meets
the
requirements
of
the
Charter.
The
text
of
paragraph
231.3(3)(b)
is
inadequate
and
therefore
inoperative.
Other
Grounds
In
conclusion
and
for
completeness'
sake,
it
is
as
well
to
mention
three
grounds
argued
by
appellants’
Counsel
upon
which
we
did
not
call
on
the
respondents.
The
first
of
such
grounds
was
based
on
subsection
231.3(5):
231.3
(5)
Any
person
who
executes
a
warrant
under
subsection
(1)
may
seize,
in
addition
to
the
document
or
thing
referred
to
in
subsection
(1),
any
other
document
or
thing
that
he
believes
on
reasonable
grounds
affords
evidence
of
the
commission
of
an
offence
under
this
Act
and
shall
as
soon
as
practicable
bring
the
document
or
thing
before,
or
make
a
report
in
respect
thereof
to,
the
judge
who
issued
the
warrant
or,
where
the
judge
is
unable
to
act,
another
judge
of
the
same
court
to
be
dealt
with
by
the
judge
in
accordance
with
this
section.
Counsel
contended
that
the
broad
wording
of
this
text
gave
a
virtually
unfettered
discretion
to
the
seizing
officer
and
thereby
vitiated
any
warrant
issued
under
section
231.3.
We
did
not
agree.
In
the
first
place,
it
seemed
to
us
that
subsection
231.3(5)
was
clearly
severable
from
the
rest
of
the
section
and
could
not
have
the
effect
contended
for
by
Counsel:
at
the
very
most,
it
could
give
rise
to
a
declaration
of
invalidity
of
the
subsection
and
of
any
seizure
effected
in
purported
compliance
therewith.
Second
and
even
more
critical,
this
Court's
judgment
in
Solvent
Petroleum,
supra,
deals
expressly
with
the
same
ground
or
attack
and
finds
that
subsection
(5)
"meets
the
test
of
reasonableness
and
therefore
of
validity”.
We
were
not
persuaded
that
there
was
any
good
reason
for
us
to
revisit
this
finding.
Counsel's
final
two
points
dealt
with
the
question
of
privilege:
solicitorclient
and
accountant-client.
With
regard
to
the
solicitor-client
privilege,
the
trial
judge
said
at
page
108
(D.T.C.
6056):
.
.
there
seems
little
doubt
that
appropriate
execution
procedures
were,
in
fact,
followed.
The
reports
made
to
Mr.
Justice
Strayer
pursuant
to
section
231.3
of
the
Income
Tax
Act,
indicate
that
a
lawyer
was
present
when
the
search
was
made
and
that
claims
for
privilege
were
made
pursuant
to
section
232
of
the
Income
Tax
Act.
The
documents
for
which
privilege
was
claimed,
by
the
lawyer,
were
placed
in
an
envelope
and
turned
over
to
the
Regent
Doré
as
custodian.
An
application
for
determination
as
to
whether
the
documents
were
properly
subject
to
solicitorclient
privilege
was
filed
in
the
Superior
Court
of
Québec.
That
application
was
subsequently
withdrawn.
In
this
regard
see
the
Affidavit
and
report
to
a
judge
of
Yvon
Demers,
dated
October
30,
1986
(paragraphs
3(d)
and
4)
and
the
affidavit
and
report
to
a
judge
of
Gilles
Thériault,
dated
June
2,
1987,
both
on
file
T-1798-86.
In
such
circumstances
it
cannot
seriously
be
thought
that
the
warrants
in
question
should
be
declared
invalid.
My
understanding
or
Mr.
Justice
Lamer's
statements
in
Descôteaux
is
that
what
is
required
is
that
the
proper
procedure
is
in
fact
followed.
That
the
procedure
was
not
set
out
on
the
face
of
the
warrant
is
not
itself
determinative.
As
far
as
the
claim
for
accountant-client
privilege
is
concerned,
a
claim
based
on
a
number
of
provisions
of
Québec
law,
the
trial
judge
said
at
page
105
(D.T.C.
6054):
Even
if
I
accept
that
the
law
of
Québec
provides
for
an
accountant-client
privilege
in
the
context
of
litigation.
I
am
not
persuaded
that
such
a
rule
has
been
adopted
with
respect
to
federal
income
tax
litigation.
If
such
a
rule
was
intended
to
apply
one
would
expect
to
find
it
expressly
so
provided
in
either
the
Canada
Evidence
Act
or
the
Income
Tax
Act.
and
again
at
page
105
(D.T.C.
6054):
It
is
not
at
all
strange
that
solicitor-client
communications
are
privileged
in
so
far
as
compellable
evidence
before
the
courts
is
concerned,
while
those
between
an
accountant
and
client
are
not.
The
purpose
of
the
solicitor-client
privilege
is
to
ensure
free
and
uninhibited
communications
between
a
solicitor
and
his
client
so
that
the
rendering
of
effective
legal
assistance
can
be
given.
This
privilege
preserves
the
basic
right
of
individuals
to
prosecute
actions
and
to
prepare
defences.
As
Mr.
Justice
Lamer
indicated,
in
Descôteaux
v.
Mierzwinski,
[1982]
1
1S.C.R.
860
at
883,
the
privilege
is
recognized
because
it
is
necessary
for
the
proper
administration
of
justice.
I
do
not
think
there
is
an
overriding
policy
consideration,
of
this
nature,
in
the
case
of
accountant-client
communication.
An
accountant
may,
as
a
matter
of
professional
ethics,
be
required
to
keep
communications
and
other
information
concerning
his
or
her
client
confidential.
But
this
is
not
founded
upon
a
need
to
ensure
an
effective
system
of
the
administration
of
justice.
We
could
see
nothing
to
criticize
in
her
treatment
of
either
matter
and
accordingly
did
not
require
to
hear
from
the
respondents.
Conclusion
For
all
the
foregoing
reasons,
I
would
allow
the
appeals,
set
aside
the
judgments
of
the
Trial
Division
and
substitute
for
them
judgments
quashing
the
search
warrants
and
ordering
the
return
of
everything
seized
in
virtue
thereof;
I
would
also
give
a
declaration
that
section
231.3
of
the
Income
Tax
Act
is
of
no
force
or
effect
because
it
is
inconsistent
with
sections
7
and
8
of
the
Charter.
I
would
give
the
appellants
their
costs
both
here
and
in
the
Trial
Division,
but
one
set
of
costs
only.
Appeals
allowed.
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