MacPherson
C.J.:—Her
Majesty
the
Queen
as
represented
by
the
Attorney
General
of
Canada
(the"applicant")
has
applied
pursuant
to
subsection
232(6)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
for
an
order
that
the
sheriff
of
the
Judicial
Centre
of
Yorkton
deliver
certain
documents
to
an
officer
of
the
Department
of
National
Revenue
(the"
Department").
The
facts
are
not
complicated,
but
unfortunately,
this
cannot
be
said
for
the
applicable
sections
of
the
Act.
The
facts
are
set
forth
in
the
affidavit
of
James
Knoblauch,
an
officer
of
the
Department
and
in
the
Department's
requirement
notice
and
the
respondent's
letter
annexed
as
exhibits.
Apparently
the
Department
was
dissatisfied
with
the
income
tax
return
filed
by
the
respondent
lawyer
Wasylyshen
(the
respondent")
for
the
year
1989,
and
to
some
extent
for
the
years
1987
and
1988.
The
Department
therefore
served
the
requirement
notice
on
the
respondent,
and
at
the
foot
of
this
notice,
the
respondent
certified
that
he
had
been
personally
served
with
the
notice
on
October
25,
1990.
This
notice
required
the
respondent,
by
November
30,
1989,
to
provide
to
the
Department
certain
financial
and
other
records
relating,
inter
alia,
to
the
respondent's
law
practice,
and
it
stated
that
if
the
respondent
so
requested,
an
officer
of
the
Department
would
attend
at
the
respondent's
office
to
receive
and
inspect
the
required
documents.
Being
concerned
with
the
requirement
of
client
confidentiality,
the
respondent
referred
the
requirement
notice
to
the
Law
Society
of
Saskatchewan
for
advice,
and
then
on
October
29,
1990
he
wrote
the
letter
to
the
Department
(exhibit
B
to
the
Knoblauch
affidavit)
in
which
he
raised
the
question
of
unnamed
clients’
privilege
in
respect
of
the
documents
requested
by
the
Department
in
para.
(1)
of
the
requirement
notice,
and
stated
that
such
documents
“will
be
left
in
a
sealed
envelope
and
delivered
to
the
local
sheriff
tomorrow
in
accordance
with
the
provisions
of
Sec.
232
of
the
Income
Tax
Act”.
The
Knoblauch
affidavit
states
that
the
sheriff
confirmed
receipt
of
a
sealed
envelope
from
the
respondent,
that
it
was
in
his
custody,
and
that
since
receiving
the
envelope,
the
sheriff
had
received
no
application
from
the
respondent
or
anyone
claiming
to
be
a
client
of
the
respondent
for
the
return
of
any
of
the
contents
of
the
said
envelope
or
to
have
the
“issue
of
solicitorclient
privilege
decided".
It
was
on
the
basis
of
these
bare
facts
that
the
applicant
mounts
this
application.
Parenthetically,
it
is
not
surprising
that
the
sheriff
did
not
hear
from
any
of
the
respondent's
clients
because
there
is
nothing
in
the
evidence
to
suggest
that
the
clients
had
any
knowledge
of
these
events.
I
have
annexed
as
a
schedule
to
this
fiat
[see
Schedule
to
Fiat
appended
to
judgment]
the
various
sections
of
the
Act
which
I
will
hereafter
refer
to
or
which
are
otherwise
relevant.
As
stated,
this
application
is
made
pursuant
to
subsection
232(6)
of
the
Act
and
the
opening
words
of
this
subsection
make
it
abundantly
clear
that
it
applies,
and
I
have
jurisdiction
to
hear
the
application,
only
where
the
documents
in
question
have
been
"seized
and
placed
in
custody
under
subsection
(3)
or
where
a
document
is
being
retained
under
subsection
(3.1)".
Only
one
of
these
prerequisites
need
be
met,
but
it
is
my
view,
on
the
evidence
before
me,
that
neither
of
them
has
been
met
and
consequently
I
am
without
jurisdiction
to
grant
the
order
requested.
My
reasons
for
so
finding
are:
1.
As
to
subsection
232(3),
it
speaks
of
an
officer
(as
defined
in
subsection
232(1)(d))
who
is
“about”
to
seize
a
document
in
a
lawyer's
possession
pursuant
to
section
231.3,
and
where
the
lawyer
claims
that
his
specifically
named
client
has
a
solicitor-client
privilege
in
respect
of
that
document.
Where
these
circumstances
pertain,
the
officer
must
seize
the
document,
place
it
in
a
sealed
package
and
deliver
it
to
the
sheriff,
who
then
becomes
a
"custodian"
as
defined
in
subsection
232(1)(b).
Section
231.3
is
the
section
empowering
a
judge
to
issue
a
warrant
authorizing
a
search
for,
and
seizure
of,
any
document
that
may
afford
evidence
of
an
offence
under
the
Act.
On
the
evidence
before
me,
no
such
warrant
ever
issued.
Further,
the
documents
in
question
were
placed
in
the
sheriff's
custody
by
the
lawyer,
and
not
the
officer,
so
that
the
sheriff
did
not
become
a
"
custodian"
within
the
meaning
of
subsection
232(6)
and
as
defined
in
subsection
232(1)(b).
Consequently,
the
documents
in
question
were
not
“seized
and
placed
in
custody"
under
subsection
232(3)
as
the
first
prerequisite
of
subsection
232(6)
requires.
2.
(a)
The
second
of
the
prerequisites
in
subsection
232(6)
speaks
of
a
document
“being
retained”
under
subsection
232(3.1).
It
provides
for
an
officer
“about
to
inspect
or
examine
a
document"
in
the
lawyer's
possession
where
the
lawyer
claims
his
named
client
has
a
solicitor-client
privilege
in
respect
of
the
document,
and
requires
the
lawyer
under
those
circumstances
to
seal
the
document
in
a
package
and
retain
it
and
ensure
that
it
is
preserved",
all
of
which
is
stated
to
be
pursuant
to
subsection
231.1
and
231.2.
It
must
first
be
pointed
out
that
the
requirements
of
subsection
232(3.1)
have
not
been
met
because
the
respondent
did
not
retain"
the
documents—he
sent
them
to
the
sheriff.
He
may
thereby
have
breached
the
Act
and
be
guilty
of
some
offence
thereunder,
but
nonetheless,
the
requirement
of
the
subsection
has
not
been
met.
Further,
this
subsection
232(3.1)
could
have
no
application
because
the
respondent
made
no
claim
of
privilege
in
respect
of
a
"named
client".
(b)
Sections
231.1
and
231.2
are
somewhat
confusing
when
read
together—it
is
difficult
to
know
whether
they
are
alternative
procedures,
or
whether
the
latter
is
intended
to
supplement
the
power
in
the
former.
In
any
event,
the
Knoblauch
affidavit
specifies
that
the
Department
proceeded
only
under
section
231.2,
and
the
first
requirement
in
the
requirement
notice
clearly
requires
production
of
documents
“relating
to
one
or
more
unnamed
persons".
Under
subsection
231.2(2),
this
kind
of
requirement
must
not
be
imposed
in
the
absence
of
"the
authorization
of
a
judge”,
and
there
is
no
evidence
of
any
such
authorization.
So,
again,
the
necessary
preconditions
have
not
been
met.
Also,
in
respect
of
both
subsection
232(3)
and
(3.1),
I
do
not
think
it
can
be
said,
on
the
evidence
before
me,
that
the
officer
was
“about
to
seize
a
document"
or
"about
to
inspect
or
examine
a
document"
in
the
respondent's
possession.
On
the
evidence,
all
that
happened
was
that
the
requirement
notice
was
sent
to
the
respondent
pursuant
to
subsection
231.2(1)
whereupon
the
respondent
sent
certain
of
the
requested
documents
to
the
sheriff
in
a
sealed
envelope
and
wrote
the
letter
to
the
Department
which
is
referred
to
above.
On
the
evidence,
the
next
step
was
Mr.
Knoblauch's
communication
with
the
sheriff
to
learn
that
the
sheriff
had
received
the
sealed
envelope
from
the
respondent
and
that
as
far
as
the
sheriff
knew,
there
had
been
no
applications
by
the
respondent
or
any
of
his
clients
to
have
any
of
the
contents
of
the
sealed
envelopes
returned
to
them,
or
that
the
issue
of
solicitor-client
privilege
be
decided.
The
Department
thus
being
aware
that
the
respondent
did
not
have
the
documents,
it
can
hardly
be
said
that
anyone
representing
the
Department
was
about"
to
examine
or
otherwise
deal
with
documents
in
the
respondent's
possession.
Interestingly,
although
probably
irrelevant,
there
is
no
evidence
that
the
Department
or
anyone
else,
prior
to
this
application,
made
any
effort
to
examine
or
deal
with
those
documents
while
in
the
possession
of
the
sheriff.
As
stated
above,
in
the
applicant's
notice
of
motion,
it
seeks
an
order
under
subsection
232(6)"that
the
Sheriff.
.
.
deliver
certain
documents
to
an
officer
of
the
Department
of
National
Revenue”.
For
the
reasons
set
forth
above,
I
hold
that
I
do
not
have
jurisdiction
to
make
the
order
sought
because,
as
required
by
subsection
232(6)
the
documents
in
question
have
not
been
"seized
and
placed
in
custody
under
subsection
(3)"
nor
are
the
documents
in
question
"being
retained
under
subsection
(3.1)".
I
think
I
should
mention
that
in
cases
of
this
kind
where
the
Act
provides
for
"an
authorized
person”
to
take
some
action
(e.g.,
subsection
231.1(1)),
there
should
be
some
proof
that
the
Departmental
person
who
has
taken
the
action
is
in
fact
authorized
by
the
Act
to
do
so.
In
this
case,
subsection
231.2(1)
states
that
the
Minister
can
send
the
requirement
notice,
and
subsection
900(2)
of
the
Regulations
authorizes
a"
Director-Taxation"
to
act
on
a
Minister's
behalf
under
this
section.
The
requirement
notice
itself,
which
is
exhibited
to
the
Knoblauch
affidavit,
purports
to
be
signed
by"A.R.
Kellett,
Director-Taxation”,
but
there
is
nothing
in
the
Knoblauch
affidavit
itself
which
confirms
that
Mr.
Kellett
is,
in
fact,
a”
"Director-Taxation".
Similarly,
if
Mr.
Knoblauch
was
an
"officer"
under
subsection
232(3)
or
(3.1),
as
defined
in
subsection
232(1)(d),
there
should
be
proof
thereof.
Although
I
have
dismissed
the
present
application,
it
does
seem
to
me
that
them
are
other
avenues
open
to
the
Department
to
secure
the
documents
in
question
while
ensuring
that
any
issue
as
to
solicitor-client
privilege
can
be
resolved
without
breaching
any
privilege
that
may
exist.
For
example,
if,
as
it
appears,
the
respondent
is
genuinely
concerned
about
his
clients’
privilege,
it
should
not
be
difficult
for
the
Department
and
the
respondent
to
agree
on
an
arrangement
whereby
the
documents
will
be
returned
by
the
sheriff
to
the
respondent
after
which
the
procedure
contemplated
by
subsection
232(14)
of
the
Act
could
be
followed.
Finally,
I
must
note
that
the
Law
Society
of
Saskatchewan
appeared
by
counsel
on
this
application
as
an
intervenor
pursuant
to
Queen's
Bench
Rule
75.
Apparently
leave
to
intervene
under
that
rule
was
granted
on
an
earlier
occasion
although
there
is
no
formal
order
or
other
indication
on
the
file
that
such
leave
was
granted.
The
Law
Society
wished,
as
amicus
curiae,
to
challenge
those
provisions
of
the
Income
Tax
Act,
which
by
affecting
solicitorclient
privilege,
thereby
infringe
the
Charter
rights
of
affected
clients.
In
the
main
application
before
me,
since
no
client
of
the
respondent
has
complained
of
its
rights
or
freedoms
under
the
Charter
having
being
infringed
or
denied
by
any
action
of
the
Department
under
the
provisions
of
the
Income
Tax
Act,
it
is
at
least
doubtful
whether
the
Law
Society
could
have
any
standing
as
amicus
curiae.
However,
in
view
of
my
dismissal
of
the
main
application,
there
is
no
need
for
me
to
deal
with
the
Law
Society's
position.
In
accordance
with
subsection
232(9)
there
will
be
no
order
as
to
costs.
Crown's
motion
dismissed.
Schedule
to
Fiat
H.H.
Stikeman,
Q.C.,
Income
Tax
Act,
Annotated,
20th
ed.
(Don
Mills:
Richard
De
Boo,
1990),
at
920
231.1
(1)
Inspections.—An
authorized
person
may,
at
all
reasonable
times,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
(a)
inspect,
audit
or
examine
the
books
and
records
of
a
taxpayer
and
any
document
of
the
taxpayer
or
of
any
other
person
that
relates
or
may
relate
to
the
information
that
is
or
should
be
in
the
books
or
records
of
the
taxpayer
or
to
any
amount
payable
by
him
under
this
Act,
and
(b)
examine
property
in
an
inventory
of
a
taxpayer
and
any
property
or
process
of,
or
matter
relating
to,
the
taxpayer
or
any
other
person,
an
examination
of
which
may
assist
the
authorized
person
in
determining
the
accuracy
of
the
inventory
of
the
taxpayer
or
in
ascertaining
the
information
that
is
or
should
be
in
the
books
or
records
of
the
taxpayer
or
any
amount
payable
by
him
under
this
Act,
and
for
those
purposes
the
authorized
person
may
(c)
subject
to
subsection
(2),
enter
into
any
premises
or
place
where
any
business
is
called
on,
any
property
is
kept,
anything
is
done
in
connection
with
any
business
or
any
books
or
records
are
or
should
be
kept;
and
(d)
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
and
to
answer
all
proper
questions
relating
to
the
administration
or
enforcement
of
this
Act
and,
for
that
purpose,
require
the
owner
or
manager
to
attend
at
the
premises
or
place
with
him.
231.2
(1)
Requirement
to
provide
documents
or
information.—
Notwithstanding
any
other
provision
of
this
Act,
the
Minister
may,
subject
to
subsection
(2),
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
by
notice
served
personally
or
by
registered
or
certified
mail,
require
that
any
person
provide,
within
such
reasonable
time
as
is
stipulated
in
the
notice,
(a)
any
information
or
additional
information,
including
a
return
of
income
or
a
supplementary
return;
or
(b)
any
document
(2)
Unnamed
persons.—The
Minister
shall
not
impose
on
any
person
(in
this
section
referred
to
as
a"
third
party")
a
requirement
under
subsection
(1)
to
provide
information
or
any
document
relating
to
one
or
more
unnamed
persons
unless
he
first
obtains
the
authorization
of
a
judge
under
subsection
(3).
231.3(1)
Search
warrant.—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.
232(1)
Definitions.—In
this
section,
(a)
"judge".—
Judge”
means
a
judge
of
a
superior
court
having
jurisdiction
in
the
province
where
the
matter
arises
or
a
judge
of
the
Federal
Court
of
Canada;
(b)
"custodian".—"custodian"
means
a
person
in
whose
custody
a
package
is
placed
pursuant
to
subsection
(3);
(c)
"lawyer".—
lawyer"
means,
in
the
province
of
Quebec,
an
advocate,
lawyer
or
notary
and,
in
any
other
province
of
Canada,
a
barrister
or
solicitor,
(d)
“officer”.—’
officer”
means
a
person
acting
under
the
authority
conferred
by
or
under
sections
231.1
to
231.5;
and
(e)
"solicitor-client
privilege".—"solicitor-client
privilege"
means
the
right,
if
any,
that
a
person
has
in
a
superior
court
in
the
province
where
the
matter
arises
to
refuse
to
disclose
an
oral
or
documentary
communication
on
the
ground
that
the
communication
is
one
passing
between
him
and
his
lawyer
in
professional
confidence,
except
that
for
the
purposes
of
this
section
an
accounting
record
of
a
lawyer,
including
any
supporting
voucher
or
cheque,
shall
be
deemed
not
to
be
such
a
communication.
(3)
Seizure
of
certain
documents
where
privilege
claimed.—When,
pursuant
to
section
231.3,
an
officer
is
about
to
seize
a
document
in
the
possession
of
a
lawyer
and
the
lawyer
claims
that
a
named
client
of
his
has
a
solicitor-client
privilege
in
respect
of
that
document,
the
officer
shall,
without
inspecting,
examining
or
making
copies
of
the
document,
(a)
seize
the
document
and
place
it,
together
with
any
other
document
in
respect
of
which
the
lawyer
at
the
same
time
makes
the
same
claim
on
behalf
of
the
same
client,
in
a
package
and
suitably
seal
and
identify
the
package;
and
(b)
place
the
package
in
the
custody
of
the
sheriff
of
the
district
or
county
in
which
the
seizure
was
made
or,
if
the
officer
and
the
lawyer
agree
in
writing
on
a
person
to
act
as
custodian,
in
the
custody
of
that
person.
(3.1)
Examination
of
certain
documents
where
privilege
claimed.—Where,
pursuant
to
sections
231.1
and
231.2,
an
officer
is
about
to
inspect
or
examine
a
document
in
the
possession
of
a
lawyer
and
the
lawyer
claims
that
a
named
client
of
his
has
a
solicitor-client
privilege
in
respect
of
that
document,
the
officer
shall
not
inspect
or
examine
the
document
and
the
lawyer
shall
(a)
place
the
document,
together
with
any
other
document
in
respect
of
which
the
lawyer
at
the
same
time
makes
the
same
claim
on
behalf
of
the
same
client,
in
a
package
and
suitably
seal
and
identify
the
package
or,
if
the
officer
and
the
lawyer
agree,
allow
the
pages
of
the
document
to
be
initialed
and
numbered
or
otherwise
suitably
identified;
and
(b)
retain
it
and,
ensure
that
it
is
preserved
until
it
is
produced
to
a
judge
as
required
under
this
section
and
an
order
is
issued
under
this
section
in
respect
of
the
document.
(4)
Application
to
judge.—Where
a
document
has
been
seized
and
placed
in
custody
under
subsection
(3)
or
is
being
retained
under
subsection
(3.1),
the
client,
or
the
lawyer
on
behalf
of
the
client,
may
(a)
within
14
days
after
the
day
the
document
was
so
placed
in
custody
or
commenced
to
be
so
retained
apply,
on
three
clear
days
notice
of
motion
to
the
Deputy
Attorney
General
of
Canada,
to
a
judge
for
an
order
(i)
fixing
a
day,
not
later
than
21
days
after
the
date
of
the
order,
and
place
for
the
determination
of
the
question
whether
the
client
has
a
solicitorclient
privilege
in
respect
of
the
document,
and
(ii)
requiring
the
production
of
the
document
to
the
judge
at
that
time
and
place;
(6)
Order
to
deliver
or
make
available.—Where
a
document
has
been
seized
and
placed
in
custody
under
subsection
(3)
or
where
a
document
is
being
retained
under
subsection
(3.1)
and
a
judge,
on
the
application
of
the
Attorney
General
of
Canada,
is
satisfied
that
neither
the
client
nor
the
lawyer
has
made
an
application
under
paragraph
(4)(a)
or,
having
made
that
application,
neither
the
client
nor
the
lawyer
has
made
an
application
under
paragraph
(c)
thereof
he
shall
order
(a)
that
the
custodian
deliver
the
document
to
the
officer
or
some
other
person
designated
by
the
Deputy
Minister
of
National
Revenue
for
Taxation,
in
the
case
of
a
document
that
was
seized
and
placed
in
custody
under
subsection
(3);
or
(b)
that
the
lawyer
make
the
document
available
for
inspection
or
examination
by
the
officer
or
other
person
designated
by
the
Deputy
Minister
of
National
Revenue
for
Taxation,
in
the
case
of
a
document
that
was
retained
under
subsection
(3.1).
(9)
Costs.—No
costs
may
be
awarded
upon
the
disposition
of
any
application
under
this
section.
(10)
Directions.—Where
any
question
arises
as
to
the
course
to
be
followed
in
connection
with
anything
done
or
being
done
under
this
section,
other
than
subsection
(2),
(3)
or
(3.1),
and
there
is
no
direction
in
this
section
with
respect
thereto,
a
judge
may
give
such
direction
with
regard
thereto
as,
in
his
opinion,
is
most
likely
to
carry
out
the
object
of
this
section
of
allowing
solicitor-client
privilege
for
proper
purposes.
(12)
Idem.—No
officer
shall
inspect,
examine
or
seize
a
document
in
the
possession
of
a
lawyer
without
giving
him
a
reasonable
opportunity
of
making
a
claim
under
this
section.
(14)
Waiver
of
claim
of
privilege.—Where
a
lawyer
has,
for
the
purpose
of
subsection
(2),
(3)
or
(3.1),
made
a
claim
that
a
named
client
of
his
has
a
solicitorclient
privilege
in
respect
of
information
or
a
document,
he
shall
at
the
same
time
communicate
to
the
Minister
or
some
person
duly
authorized
to
act
for
the
Minister
the
address
of
the
client
last
known
to
him
so
that
the
Minister
may
endeavour
to
advise
the
client
of
the
claim
of
privilege
that
has
been
made
on
his
behalf
and
may
thereby
afford
him
an
opportunity,
if
it
is
practicable
within
the
time
limited
by
this
section,
of
waiving
the
claim
of
privilege
before
the
matter
is
to
be
decided
by
a
judge
or
other
tribunal.
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