Baron (B.) v. Canada (No. 2), [1991] 1 CTC 408

Hugessen, J.A. (Pratte and Marceau, JJ.A., concurring):—On November 28, 1990 we allowed these appeals and set aside the judgments rendered by the Trial Division. In three cases (Court files A-618-89, A-619-89, A-620-89) we substituted for the judgment of the Trial Division a judgment quashing the relevant search warrants and “ordering the respondents to return forthwith to the appellants everything that was seized under the authority of the said warrants". In the fourth case (A-621-89), in addition to the foregoing, we also issued a declaration that section 231.3 of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the"Act") is of no force and effect.

The appellants now move, pursuant to rule 337(5), to correct the final judgment by adding to and immediately after the paragraph dealing with the return of everything that was seized, the following:

. . . as well as all extracts and copies thereof; and

that the Respondents return forthwith to the Appellant all summaries, notes or diagrams taken from the documents, books, records, papers or other items seized by the Respondents under the authority of the said search warrants;

order the destruction of all summaries, copies, notes or diagrams which have not been returned by the Respondents for whatsoever reason;

With regard to the first proposed correction, the respondents concede that they understand our judgment as extending to copies and extracts of the seized materials. Since such an understanding is, in any event, in accordance with this Court's decision in Lagiorgia v. The Queen, [1987] 3 F.C. 28; [1987] 1 C.T.C. 424; 87 D.T.C. 5245, the appellants are entitled to the requested correction.

The second requested correction raises a very different issue and is contested by the respondents. In my view, they are right to do so. Appellants here are seeking to modify the judgment by adding thereto an order for the return or destruction, not only of the things seized and actual copies or extracts thereof but also of any summaries, notes or diagrams based thereon. By definition, such summaries, notes or diagrams must be different from simple extracts or copies of the things seized and must contain some component, great or small, which has its source elsewhere. That source may be limited to the intellect of the person preparing the summaries, notes or diagrams or may extend far beyond it to other materials legitimately obtained some of which, it mamy be, cannot and should not be revealed.

In my opinion, this is not the case and a motion of this kind is not the occasion to test the limits of the Court's remedial powers when it sets aside a search as having been made contrary to the Charter. I say this for two reasons.

First, the evidentiary basis for a proper determination is lacking. We do not know what summaries, notes or diagrams may or may not have been prepared or by whom. We cannot tell to what extent they rely on the improperly seized materials and to what extent they rely on other sources. We do not know what such sources may be. In such circumstances it is not possible for us to decide with full knowledge of the reach of our decision.

Second, this is clearly a case where any remedy is at the discretion of the Court. In my view, the appellants’ own conduct leaves much open to question. The warrants which we have ordered set aside were issued on August 7, 1986 and were executed one day later. The present proceedings seeking to set aside those warrants were instituted on June 21, 1989, nigh on three years later. To require the respondents to sift through all the material generated in the intervening period which may, in some way, be based upon the improperly seized documents would in the circumstances be an improper imposition. I would exercise my discretion against granting the additional relief sought.

I would allow the application in part only and without costs. I would correct the formal judgments herein by adding after the word " warrants" in the second line of the second paragraph the words "as well as all extracts and copies thereof".

Motion allowed in part.