Teitelbaum,
J.:—These
reasons
shall
apply
to
files
T-2148-87,
T-2149-87
and
T-2150-87.
The
applicants
request
that
I
issue
an
order
pursuant
to
Rule
332(5)
ordering
Michael
R.
Flinn
to
attend
for
the
purposes
of
being
cross-examined
on
his
affidavits
(information
to
obtain
search
warrants)
filed
herein,
an
order
pursuant
to
Rule
319(4)
granting
leave
to
the
applicants
to
call
David
S.
McEwen
of
Moncton,
New
Brunswick,
to
testify
in
open
court
with
regard
to
the
information
the
said
David
S.
McEwen
has
given
to
Michael
R.
Flinn,
an
order
pursuant
to
Rule
331
granting
leave
to
the
applicants
to
issue
a
subpoena
for
the
securing
of
the
attendance
of
the
said
David
S.
McEwen
at
the
hearing
of
the
motions
to
be
heard
at
Halifax
on
September
6,
1988
and
an
order
directing
that
the
motions
referred
to
in
my
order
of
December
14,
1987
and
filed
herein,
and
the
analogous
motions
on
file
in
court
file
numbers
T-2148-87,
T-2149-87
and
T-2150-87
be
disposed
of
on
the
basis
of
common
evidence.
The
motions
in
court
file
numbers
T-2147-87,
T-2148-87,
1-2149-87
and
T-2150-87
had
been
set
for
hearing
in
Halifax,
Nova
Scotia
for
April
5,
6
and
7,
1988.
With
the
consent
of
counsel
for
the
parties,
the
motions
are
now
set
for
hearing
for
September
6,
7,
8
and
9,
1988
in
Halifax.
Counsel
for
the
Minister
informs
me
that
he
has
no
objection
that
all
motions
be
disposed
of
on
the
basis
of
common
evidence.
I
therefore
shall
order
that
the
motions
in
court
file
numbers
T-2147-87,
1-2148-87,
T-2149-87
and
T-2150-87
be
disposed
of
on
the
basis
of
common
evidence.
The
applicants
request
that
I
order
the
cross-examination
of
Flinn
on
his
affidavit
before
the
judge
of
this
Court
who
is
to
hear
the
motions
in
Halifax
on
September
6,
1988.
They
also
request
that
McEwen
be
ordered
to
testify
in
open
court
at
the
hearing
of
the
motions.
The
only
reason
given
to
me
for
this
request
by
counsel
for
applicants
is
that
the
judge
hearing
the
motions
would
be
in
a
better
position
to
decide
on
the
issue
of
credibility.
As
counsel
states
“it
is
preferable
to
examine
an
affiant
before
a
judge
in
open
court".
Rule
319,
in
speaking
of
applications
by
motion,
states:
Rule
319.
Applications
by
Motion
(1)
Where
any
application
is
authorized
to
be
made
to
the
Court,
a
judge
or
a
prothonotary,
it
shall
be
made
by
motion.
(2)
A
motion
shall
be
supported
by
affidavit
as
to
all
the
facts
on
which
the
motion
is
based
that
do
not
appear
from
the
record,
which
affidavit
shall
be
filed;
and
an
adverse
party
may
file
an
affidavit
in
reply.
(3)
The
party
making
a
motion
shall
serve
a
copy
of
his
affidavits
on
other
parties
with
the
notice
of
the
motion
and
an
affidavit
filed
by
any
other
party
shall
be
served
on
other
parties
forthwith.
(4)
By
leave
of
the
Court,
or
of
a
judge
of
the
Court
of
Appeal,
for
special
reason,
a
witness
may
be
called
to
testify
in
open
court,
or
before
a
judge
of
the
Court
of
Appeal,
in
relation
to
an
issue
of
fact
raised
by
an
application.
[Emphasis
added.]
It
is
obvious
that,
on
the
hearing
of
motions,
the
general
rule
is
that
the
motion
is
to
be
supported
by
an
affidavit
or
affidavits
(Rule
319(2))
and
only
"for
special
reason"
a
witness
may
be
called
to
testify
in
open
court.
I
am
not
convinced
that
the
reason
given
by
counsel
for
the
applicants
"it
is
preferable”
is
a
special
reason.
I
therefore
do
not
agree
to
allow
viva
voce
evidence
of
Flinn
or
McEwen
in
the
hearing
of
the
motions
on
September
6,
7,
8
and
9,
1988.
The
serious
issue
that
I
must
decide
is
whether
to
allow
the
cross-
examination
of
Flinn
on
the
information
he
gave
in
order
to
obtain
search
warrants
and
whether
to
order
McEwen
to
give
evidence,
in
affidavit
form
for
the
applicants.
I
am
of
the
opinion
that
the
applicants
are
not
legally
entitled
to
cross-
examine
Flinn
on
his
information
to
obtain
search
warrants
and
that
I
should
not
order
McEwen
to
give
evidence.
In
so
far
as
McEwen
is
concerned,
if
the
applicants
can
obtain
McEwen's
co-operation
and
he
is
willing
to
give
them
his
testimony
in
affidavit
form,
I
see
no
problem
with
accepting
same.
I
do
not
believe
he
should
be
ordered
to
give
evidence
in
relation
to
the
information
he
gave
to
Flinn.
I
believe
it
necessary
to
briefly
state
the
events
leading
up
to
the
present
motion.
On
October
21,
1987,
counsel
for
the
Minister
of
National
Revenue,
pursuant
to
section
231.3
of
the
Income
Tax
Act
presented
an
ex
parte
application
for
the
issuance
of
a
warrant
to
enter,
search
and
seize.
Counsel
also
presented
an
information
to
obtain
a
search
warrant
signed
by
Michael
R.
Flinn
in
which
Flinn
lists
the
offences
that
he
believes
he
has
reasonable
and
probable
grounds
were
committed,
the
documents
and
things
to
be
searched
for,
the
places
to
be
searched
and
the
grounds
for
the
belief.
In
paragraph
52
of
the
information
filed
in
file
T-2147-87,
Flinn
states
he
received
certain
of
his
information
from
a
David
S.
McEwen.
In
file
T-2150-87
is
a
written
statement
signed
by
McEwen.
231.3
(1)
Search
warrant.—A
judge
may,
on
ex
parte
application
by
the
Minister,
issue
a
warrant
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.
(2)
Evidence
in
support
of
application.—
An
application
under
subsection
(1)
shall
be
supported
by
information
on
oath
establishing
the
facts
on
which
the
application
is
based.
After
an
examination
of
the
documents
presented,
the
Court
authorized
the
issuance
of
the
warrants
requested.
The
present
motion
is
made
in
consequence
of
the
above.
The
applicants
have
presented
a
detailed
memorandum
dealing
with
the
issue
of
the
cross-examination
of
Mr.
Flinn,
the
attendance
and
examination
of
Mr.
McEwen
as
well
as
with
the
nature
of
the
review
with
regard
to
the
issue
of
inherent
jurisdiction
and
a
subsection
24(1)
Charter
argument.
The
memorandum
was
prepared
without
the
benefit
of
the
knowledge
of
two
important
decisions
by
Mr.
Justice
Dubé
of
the
Federal
Court
of
Canada,
Trial
Division
namely
Director
of
Investigation
and
Research:
The
Competition
Act
v.
The
Calgary
Real
Estate
Board
Co-Operative
Limited
et
al.,
T-524-87
(unreported)
F.C.T.D.
July
29,
1987
and
Solvent
Petroleum
Extraction
Inc.
et
al.
v.
M.N.R.,
[1988]
1
C.T.C.
325;
88
D.T.C.
6224
(F.C.T.D.).
The
issue
contested
by
the
Minister
during
the
hearing
before
me
is
the
issue
of
whether
or
not
Flinn
should
be
cross-examined
on
his
affidavit
(information)
and
whether
McEwen
should
be
ordered
to
testify.
The
applicants
rely
on
Rule
332(5)
of
the
Federal
Court
Rules
for
the
right
to
cross-examine
Flinn.
Rule
332
states:
Rule
332.
Affidavits
(1)
Affidavits
shall
be
confined
to
such
facts
as
the
witness
is
able
of
his
own
knowledge
to
prove,
except
on
interlocutory
motions
on
which
statements
as
to
his
belief
with
the
grounds
thereof
may
be
admitted.
(2)
Affidavits
shall
be
drawn
in
the
first
person,
shall
state
the
place
of
abode
and
occupation
of
the
deponent,
and
shall
be
in
numbered
paragraphs.
(3)
When
an
affidavit
is
made
by
any
person
who
is
blind,
or
who
from
his
signature
or
otherwise
appears
to
be
illiterate,
the
person
before
whom
the
affidavit
is
sworn
shall
certify
that
the
affidavit
was
read
over
to
the
deponent,
and
that
the
deponent
appeared
to
understand
the
same
and
made
his
mark
or
wrote
his
signature
thereto
in
the
presence
of
the
person
before
whom
the
affidavit
was
sworn.
(4)
When
an
affidavit
is
made
in
English
by
a
person
who
does
not
speak
the
English
language,
or
in
French
by
a
person
who
does
not
speak
the
French
language,
the
affidavit
shall
be
taken
down
and
read
over
to
the
deponent
by
interpretation
of
a
person
previously
sworn
faithfully
to
interpret
the
affidavit
(Form
29).
(5)
Any
person
making
an
affidavit
that
has
been
filed
may
be
required
to
appear
before
a
prothonotary,
or
any
other
person
specially
appointed
by
a
prothonotary
or
the
Court,
or
agreed
upon
by
the
parties
for
that
purpose,
to
be
cross-examined
thereon;
and
the
attendance
of
such
person
may
be
enforced
by
subpoena
(Rule
333).
Two
clear
days'
notice
of
such
cross-examination
is
to
be
given
by
the
cross-
examining
party
to
the
opposite
party.
(6)
Where
there
is
a
reference
in
an
affidavit
to
an
exhibit,
that
reference
shall
be
made
by
words
identifying
the
exhibit,
as,
for
example,
“Exhibit
A
to
this
my
affidavit";
and
there
shall
be
endorsed
on,
or
attached
to,
the
exhibit
a
certificate
identifying
the
exhibit
and
signed
by
the
person
before
whom
the
affidavit
is
sworn,
as
for
example,
"This
is
Exhibit
A
to
the
affidavit
of
John
William
Smith
sworn
before
me
the
day
of.
.
.
.,
19
.
.".
The
reason
for
the
need
to
cross-examine
Flinn,
as
stated
in
the
memorandum
of
applicants
is:
In
essence,
the
Applicant
will
submit,
as
can
be
seen
in
portions
of
the
Affidavit
of
Nelson
Bradbury,
dated
December
11,
1987,
and
on
file
herein,
that
there
are
serious
omissions
in
the
Information.
The
Applicant
will
further
submit
that
those
errors
of
omission,
in
themselves,
without
regard
to
the
question
of
misrepresentation,
are
of
sufficient
magnitude
to
impugn
the
material
provided
to
this
Court
prior
to
the
Warrants
issuing,
and
that
the
validity
of
the
Warrants
themselves
are
therefore
jeopardized.
The
reason
given,
in
the
memorandum,
to
have
McEwen
testify
is:
The
special
circumstances
here
arise
from
the
manner
in
which
the
previous
statements
of
Mr.
McEwan
were
presented,
in
an
unsworn
fashion;
from
the
fact
that
crucial
portions
of
those
statements
have
been
denied
(refer
to
paragraph
13
of
the
Bradbury
Affidavit);
and
from
the
nature
of
the
challenge
to
the
Warrants
themselves.
In
support
of
the
applicants’
contention
that
they
have
a
right
to
cross-
examine
Flinn
and
have
McEwen
testify,
applicants
in
their
memorandum
refer
to
the
cases
of
Wilson
v.
The
Queen,
[1983]
2
S.C.R.
594;
4
D.L.R.
(4th)
577;
Scheidel
v.
The
Queen
(1986),
27
C.R.R.
274
(Sask.
Q.B.);
Re
Church
of
Scientology
et
al.
and
The
Queen
(No.
6)
(1987),
31
C.C.C.
(3d)
449
(Ont.
C.A.);
Re
Church
of
Scientology
and
The
Queen
(No.
4)
(1985),
17
C.C.C.
(3d)
499.
At
the
hearing,
counsel
for
applicants
contend
that
they
must
be
accorded
the
right
to
cross-examine
Flinn
in
order
to
prove
reckless
disregard
on
the
part
of
Flinn.
The
applicants
are
of
the
belief
that
Flinn
had
more
information
than
he
gave
in
his
sworn
affidavit
and
thus
failed
to
disclose
all
of
the
material
facts.
In
support
of
this
contention,
I
was
referred
to
various
paragraphs
in
the
information
and
to
various
paragraphs
in
the
affidavits
of
Bradbury
and
Ellman.
I
believe
it
not
necessary
to
discuss
the
cases
submitted
for
my
consideration
by
the
applicants
only
because
the
entire
issue
was
well
explored
by
Mr.
Justice
Dubé
in
the
case
of
Director
of
Investigation
&
Research:
the
Competition
Act,
R.S.C.
1970,
Chap.
C-23,
as
amended
S.C.
1986,
Chap.
26,
Ex.
Rel.
Larry
W.
Bryenton
v.
The
Calgary
Real
Estate
Board
Co-Operative
Limited,
Royal
Lepage
Real
Estate
Services
Limited
(supra)
(hereinafter
referred
to
as
Calgary
Real
Estate
Board).
I
am
of
the
opinion
that
this
case
is
on
“all
fours"
with
the
issue
presently
before
me.
In
this
case
an
application
is
being
made
for
an
order
compelling
Larry
W.
Bryenton
to
attend
to
be
cross-examined
upon
his
information
dated
March
12,
1987
as
a
result
of
which
23
warrants
were
issued
pursuant
to
the
Competition
Act.
In
the
application
before
me,
I
am
asked
to
issue
an
order
compelling
Flinn
to
attend
to
be
cross-examined
on
his
information.
It
is
as
a
result
of
a
number
of
informations
signed
by
Flinn
that
warrants
were
issued
pursuant
to
the
Income
Tax
Act
in
court
file
numbers
T-2147-87,
T-2148-87,
T-2149-87
and
T-215O-87.
Basically,
the
same
arguments
were
made
before
Mr.
Justice
Dubé
as
are
being
made
before
me.
In
the
Calgary
Real
Estate
case
it
was
submitted:
The
respondents
submit
that
once
the
Director
chooses
to
proceed
in
the
Federal
Court
of
Canada
to
obtain
a
search
warrant
he
accepts
the
procedures
applicable
to
the
Court
as
defined
in
the
Federal
Court
Act
and
the
Federal
Court
Rules.
They
allege
that
the
decision
to
issue
a
search
warrant
ex
parte
under
the
Competition
Act
is,
by
its
very
nature,
an
ex
parte
order
of
the
Federal
Court.
Rule
332(5)
of
the
Federal
Court
Rules
provides
that
any
person
making
an
affidavit
that
has
been
filed
may
be
required
to
appear
before
a
prothonotary,
or
any
other
person
specially
appointed
to
be
cross-examined.
The respondents also submit that there is a prima facie right of an adverse party to cross-examine an informant on an affidavit submitted in support of an application for a search warrant issued under section 13 of the Competition Act and refer to Butler Manufacturing Co. (Canada) Ltd. v. The Minister of National Revenue, Re Corr et al. and The Queen et al.2 and Volckmar v. Krupp3 . The respondents also claim that, in any event, there is a right to cross-examine an informant in proceedings instituted to have an ex parte order reviewed (Wilson v. The Queen4 ). The respondents also argue that such a right of cross-examination is fundamental to the legal rights guaranteed by sections 7 and 8 of the Canadian Charter of Rights and Freedoms.
The respondents also argue that since the provisions of Parts I and II of the Competition Act are expressly enacted in accordance with the trade and commerce power set out in subsection 91(2) of the Constitution Act, 1867, and since such provisions are clearly applicable to both criminal and civil proceedings, that the procedure in respect of those matters is not criminal procedure, hence the existing Federal Court Rules are applicable (Attorney-General of Canada v. Canadian National Transportation Ltd. et al.5, Hogg, Constitutional Law of Canada (2d ed.), pages 406 to 409, Attorney-General of Canada v. Quebec Ready Mix Inc. et al.6 and Goldman et al. v. Hoffman-La Roche Limited7 ).
1
2
3
4
5
6
7
As
I
have
stated,
these
same
arguments
were
made
to
me
by
the
present
applicants.
I
need
only
quote
Mr.
Justice
Dubé
at
page
4
of
the
decision:
In
my
view,
there
is
no
prima
facie
right
to
cross-examination
at
this
preliminary
stage.
The
application
for
approval
of
the
search
warrant
is
merely
an
investigative
step
and
no
substantial
injustice
is
caused
by
denying
the
right
to
cross-examination.
The
application
for
approval
is
not
determinative
of
any
final
right
and
no
useful
purpose
would
be
served
by
extending
the
right
to
cross-examination
at
this
early
stage.
The
present
applicants
have
not
made
any
allegation
of
deliberate
falsehood
or
reckless
disregard
for
the
truth.
They
only
allege
that
they
believe
that
the
informant,
Flinn,
knew
more
than
he
allegedly
stated
in
his
information
filed
with
the
applications
to
obtain
the
warrants.
In
McIntosh
Paving
Company
Limited
v.
Lawson
A.W.
Hunter,
Supreme
Court
of
Ontario
(unreported
March
18,
1987)
it
was
held:
before
cross-examination
should
be
permitted
an
allegation
of
deliberate
falsehood
or
omission
or
reckless
disregard
for
the
truth
with
respect
to
essential
material
should
be
made
and
before
a
warrant
should
be
set
aside,
such
an
allegation
should
be
established.
[Emphasis
is
mine.]
In
the
case
of
Solvent
Petroleum
Extraction
Inc.
et
al.
v.
M.N.R.,
(supra),
in
a
case
involving
warrants
issued
in
virtue
of
section
231.3
of
the
Income
Tax
Act,
as
in
the
present
case,
Mr.
Justice
Dubé
states,
at
p.
328
(D.T.C.
6226):
In
Director
of
Investigation
and
Research
v.
the
Calgary
Real
Estate
Board
Co-
Operative
Limited,
T-524-87
yet
unpublished,
I
reviewed
the
jurisprudence
in
the
matter
of
the
right
to
cross-examine
the
affiant
on
his
affidavit
leading
to
a
warrant
under
the
Competition
Act.
I
found,
along
with
the
Supreme
Court
of
Ontario
in
the
Church
of
Scientology,
supra,
that
there
is
a
presumption
of
validity
with
respect
to
an
affidavit
supporting
the
application
for
a
search
warrant.
I
endorsed
as
well
the
decision
of
that
same
Court
in
Macintosh
Paving
Company
Limited
and
Lawson
A.W.
Hunter
(Supreme
Court
of
Ontario,
unreported,
March
18,
1987)
to
the
effect
that
before
cross-examination
should
be
permitted
an
allegation
of
deliberate
falsehood
or
omission
or
reckless
disregard
for
the
truth
with
respect
to
essential
material
should
be
made
and
should
be
established
before
a
warrant
is
quashed.
[Emphasis
added.
I]
In
the
Solvent
Petroleum
Extraction
Inc.
et
al.
case,
supra,
Mr.
Justice
Collier
in
virtue
of
a
motion
made
by
Solvent
Petroleum,
ordered
the
informant,
a
Mr.
Maurice
K.C.
Ma
to
attend
to
be
cross-examined
upon
his
information
but,
in
order
to
prevent
a
fishing
expedition,
limited
the
cross-
examination
to
very
specific
matters.
In
the
present
application,
I
am
satisfied
that
because
the
applicants
allege
that
Flinn
knew
more
than
he
states
in
his
information
and
since
they
wish
to
cross-examine
him
on
all
matters
leading
up
to
the
filing
of
the
application
for
the
warrants,
they
wish
to
proceed
on
a
fishing
expedition.
In
the
case
of
Thomas
A.
Corr
et
al.
v.
The
Queen
et
al.,
[1987]
2
C.T.C.
104;
87
D.T.C.
5330
it
is
held
by
the
Ontario
Court
of
Appeal
that
leave
to
cross-
examine
an
informant
on
his
affidavit
will
not
be
granted
unless
the
motion
for
leave
is
based
upon
allegations
of
deliberate
falsehood
or
omission
or
reckless
disregard
for
the
truth,
and
a
prima
facie
case
for
such
allegations
is
made
out.
In
this
case
(Corr)
an
application
for
leave
to
appeal
to
the
Supreme
Court
of
Canada
has
been
refused
according
to
the
information
given
to
me
by
counsel
for
the
Minister.
Counsel
for
the
applicants
has
failed
to
convince
me
that
I
should
decide
differently
than
what
was
decided
by
Mr.
Justice
Dubé.
The
applicants
will
have
ample
opportunity
to
attempt
to
have
the
warrants
set
aside
during
the
hearing
to
take
place
in
September
1988.
The
request
to
cross-examine
Michael
R.
Flinn
is
denied.
The
request
that
I
order
David
S.
McEwen
to
testify
at
a
hearing
in
September
on
the
information
he
provided
Michael
R.
Flinn
to
obtain
a
search
warrant
is
denied.
Costs
in
the
cause.
Motion
denied.
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