In re Paroian, 80 DTC 6077, [1980] CTC 131 (Ont.C.A.)

Morden, JA:—In this appeal we are primarily concerned with the proper interpretation of subsection 231(4) of the Income Tax Act, RSC 1952, c 148 as enacted by SC 1970-71-72, c 63 section 1. This provision and subsection (5), which is related to it, read:

(4) Where the Minister has reasonable and probable grounds to believe that a violation of this Act or a regulation has been committed or is likely to be committed, he may, with the approval of a judge of a superior or county court, which approval the judge is hereby empowered to give on ex parte application, authorize in writing any officer of the Department of National Revenue, together with such members of the Royal Canadian Mounted Police or other peace officers as he calls on to assist him and such other persons as may be named therein, to enter and search, if necessary by force, any building, receptacle or place for documents, books, records, papers or things that may afford evidence as to the violation of any provision of this Act or a regulation and to seize and take away any such documents, books, records, papers or things and retain them until they are produced in any court proceedings.

(5) An application to a judge under subsection (4) shall be supported by evidence on oath establishing the facts upon which the application is based.

H O Merrett, a Director General, Special Investigations Directorate, Department of National Revenue, Taxation, sought to avail himself of this provision in June of 1977 by giving, in a document entitled “AUTHORIZATION TO ENTER AND SEARCH’’, some thirty-four named “officers of the Department of National Revenue’’ authority to enter and search certain specified premises. (There is no dispute that by reason of paragraph 221 (1 )(f) of the Income Tax Act and Regulation 900(5) Mr Merett had the powers of the Minister to act under subsection 231(4)).

The relevant parts of the authorization read:

The Director General, Special Investigations Directorate, Department of National Revenue, Taxation, hereby authorizes [the named thirty-four officers], or any of them, together with such members of the Royal Canadian Mounted Police or other peace officers as they, or any of them, may call on to assist them, or any of them, to enter and search, if necessary by force, the following premises and any receptacles or places therein:

(f) The offices of Paroian, Courey, Cohen & Houston, Lawyers, and all storage facilities occupied or controlled by them at 875 Ouellette Avenue, Windsor, Ontario.

for documents, books, records, papers or things pertaining or relating to Collavino Brothers Construction Company Limited that may affect evidence as to the violation of any provision of the Income Tax Act or a regulation and to seize and take away any such documents, books, records, papers or things and retain them until they are produced in any court proceedings . . .

GIVEN under my hand at the City of Ottawa, Province of Ontario, this 24th day of June, 1977.

“H O Merrett”

Director General,

Special Investigations

Directorate of the Department of National Revenue, Taxation.

Other parts of this document refer to the business premises of Collavino Brothers Construction Company Limited, those of Kendan Manufacturing Limited, the private residence of Dan Bryan, two of the offices of Coopers & Lybrand, Chartered Accountants, in the City of Windsor—and other specified premises. Those parts relating to Coopers & Lybrand have already been before the courts: In re Collavino Brothers Construction Company Limited, [1978] 2 FC 642; [1978] CTC 100; 78 DTC 6050 reversed, on the question of the jurisdiction of the Federal Court of Appeal, by the Supreme Court of Canada in MNR v Coopers and Lybrand, [1979] 1 SCR 495, [1978] CTC 829; 78 DTC 6528.

The authorization was approved by His Honour Judge Zalev on August 2, 1977. The approval, which is typed at the foot of the authorization reads:

After having considered the application made by the Director General of Special Investigations based on the affidavit of John William Brown, I hereby approve of the above authorization, which approval is also indicated on the preceding page by my initials.

DATED AT Windsor this 2nd day of August 1977.

“Carl Zalev”

CARL ZALEV

Judge of the County Court of Essex

On August 10, 1977 certain documents relating to Collavino Brothers Construction Company Limited were seized from Paroian, Courey, Cohen & Houston, under protest, pursuant to this authorization and were deposited with the Deputy Sheriff of the County of Essex.

By notice of motion dated August 15, 1977 directed to the Deputy Attorney General of Canada and the Deputy Sheriff of the County of Essex, Paroian, Courey moved for an order “setting aside” this authorization on several grounds and for other relief. After hearing this motion, Morand, J ordered that:

. all documents seized from the offices of Messrs Paroian, Courey, Cohen & Houston pursuant to the authorization to enter and search given under the hand of H O Merrett, Director General, The Special Investigations Directorate of the Department of National Revenue, Taxation, and approved by His Honour Judge C Zalev, on the 2nd day of August, 1977, at the City of Windsor, in the County of Essex, with the exception of those documents which relate to the dealings between Collavino Brothers Construction Company Limited, Dan Bryan and Kendan Manufacturing Limited concerning the construction of the Bryan residence and the construction of an addition to the plant of Kendan Manufacturing Limited, be returned to the applicants.

The Minister appeals, submitting, in effect, that the application should have been dismissed outright. The ground of appeal reads:

. . . the learned Judge erred in law in holding that the agents of the Minister were only entitled under the authorization to seize those documents in possession of the applicant which related to the dealings between Collavino Brothers Construction Company Limited, Dan Bryan and Kendan Manufacturing Limited concerning the construction of the Bryan residence and the construction of an addition to the plant of Kendan Manufacturing Limited rather than documents that may afford evidence as to the violation of any provision of the Income Tax Act or a regulation.

Paroian, Courey cross-appealed, asking that Morand, J’s order be varied to provide that “the Order of His Honour Judge Zalev dated the 2nd day of August, 1977” be set aside outright.

Before dealing with the evidence that was before Judge Zalev and Morand, J I think it would be helpful to say something about the relief sought and the jurisdiction of the court to grant it. Notwithstanding the language of the original notice of motion, the relief sought was that of certiorari to quash the approval granted by Judge Zalev. The Minister, I gather from Mr Olsson’s position, is prepared to look upon it this way. If the applicant was successful in this regard, ie if the approval were quashed, the authorization would be “without effect”: MNR v Coopers and Lybrand, Supra, at pp 506 and 508. While the point was left open by the Supreme Court of Canada, the Minister concedes that a county court judge's approval under subsection 231(4) is subject to review on an application for an order of certiorari. I think it is clear that the county court judge, acting under this provision, exercises the jurisdiction of an inferior court (in the context of a superior court’s supervisory jurisdiction) and, therefore, accept that this concession is a proper one.

I shall deal with the evidence as briefly as possible. It comes down to an allegation that Collavino Brothers, to “accommodate” Kendan Manufacturing Limited and Dan Bryan, made false and deceptive entries in its books (Income Tax Act, paragraph 239(1)(c)) relating to construction contracts which Collavino Brothers had with each of Kendan and Bryan. In more detail, the evidence disclosed that Bryan was the Vice-President of Kendan in 1974 and 1975. Collavino Brothers entered into a contract with Bryan in March of 1974 to build a house for him for $43,000. The costs on this job were about $90,397. Bryan had paid $37,200 to Collavino Brothers as of November 30, 1976. For the years 1974 and 1975 his income tax returns disclosed only employment income earned from Kendan.

Collavino Brothers also undertook the construction of an addition to the existing plant of Kendan. Its net billing to Kendan was $360,000. It reported to its auditors, Coopers & Lybrand, contract revenue with respect to Bryan of $37,200 and total costs of $90,397 and, with respect to Kendan, contract revenue of $360,000 and total costs of $226,827. These amounts were in accord with what was on Collavino Brothers’ revenue and cost cards.

John William Brown, an office of the Department of National Revenue, who swore the affidavit put before Judge Zalev, said in paragraphs 12, 13, 19 and 24(c) thereof:

12. ... I have reasonable grounds to believe and do believe that Collavino Brothers Construction Company Limited and Mario Collavino have made false or deceptive entries in the books of account of the said Collavino Brothers Construction Company Limited by including in the billings for the construction of the addition to the plant of Kendan Manufacturing Limited, an approximate amount of $53,197 as being a portion of the cost of the residence of DAn Bryan, shareholder of Kendan Manufacturing Limited.

13. . . . I have reasonable grounds for believing and do believe that Collavino Brothers Construction Company Limited has committed an offence under Section 239 of the Income Tax Act and Amendments thereto by making false or deceptive entries in the books of account of the said Collavino Brothers Construction Company Limited in the course of the years 1974 and 1975.

19. Paroian, Courey, Cohen & Houston is a firm of lawyers engaged in the practice of law in the municipality of Windsor, Ontario. The said law firm negotiated various transactions for Collavino Brothers Construction Company Limited for the years 1974 and 1975 and would have in its possession legal files and other documents relating to the affairs of the said Collavino Brothers Construction Company Limited.

24. As a result of my enquiry, I have reasonable grounds for believing and do believe that documents, books, records, papers and things that may afford evidence as to the violation of any provisions of the Income Tax Act or a regulation may be found in the following premises and any receptacles or places therein:

(c) The offices of Paroian, Courey, Cohen & Houston, lawyers, and all storage facilities occupied or controlled by them at 875 Ouellette Avenue, Windsor, Ontario.

The alleged result is that Kendan claimed a capital cost allowance on the amount of $360,000 “thereby improperly claiming Capital Cost Allowance on the amount of $53,197”as a deduction for 1975, and Bryan “has not reported as a benefit any portion of the $53,197 partial cost of his residence paid by Kendan . . . in his T1 returns of income for the years 1974 and 1975.’’

It should be said at this point that there is no suggestion whatsoever that Paroian, Courey had any knowledge of the alleged activities of Collavino Brothers or are in any way implicated therein. Further, Mr Olsson made it clear in the course of the argument that the offence alleged against Col- lavino Brothers under paragraph 239(1)(c) does not relate to its income tax position but rather to that of Kendan and Bryan. Although nothing was said on this behalf of Paroian, Courey, I have some difficulty seeing how Col- lavino Brothers can be liable under paragraph 239(1 )(c), except as a party by virtue of paragraph 21 (1)(b) or (c) of the Criminal Code. Since the point was not argued I express no concluded opinion on it.

On the merits of the application before him, Morand, J said:

I have .. . reviewed the affidavits which were placed before Judge Zalev when his approval to the authorization was sought and am of the opinion that they establish certain facts which disclose reasonable and probable grounds for the belief that a violation of the Act has been committed.

The next issue which I must decide is whether or not the documents actually seized from the offices of the applicant were documents subject to seizure within the terms of the authorization.

The authorization itself directs the persons designated therein to enter and search the offices of the applicant “for documents, books, records, papers or things pertaining or relating to Collavino Brothers Construction Company Limited that may afford evidence as to the violation of any provision of the Income Tax Act or a regulation and take away any such documents, books, records, papers or things and retain them until they are produced in any court proceedings . . .” (emphasis added).

The affidavit filed before Judge Zalev related facts directed toward a specific violation of the Act. My concern is with the use of the word “any” in the authorization which is admittedly taken from the words of the enabling section itself. Can it be said that having evidence of the commission of a violation or the likelihood of the commission of a violation of the Act, that the subsequent inclusion of the word “any” justifies the seizure of all documents including those obviously unrelated to the violation which was the basis of the authorization?

Cases decided in relation to s 443 of the Criminal Code are of assistance in this regard. That section provides for the issuance of a warrant for search and seizure where there are reasonable grounds to believe that “any offence against this Act has been or is suspected to have been committed.’’ (s 443(1)(a)—emphasis added).’’ In fl Rv Colvin, Ex parte Merrick et al, [1970] 3 OR 612 it was held that the documents seized must be relevant or apparently relevant to the suspected offence which justified the issue of the search warrant. Reference may also be made to Shumiatcher v A G of Saskatchewan and Salterio, JP (1930), 129 CCC 267.

In the result, and without delving into the matter of the claim of a solicitor-client privilege, it is my opinion that the agents of the Minister were only entitled to seize those documents in possession of the applicant which related to the dealings between Collavino Brothers Construction Company Limited, Dan Bryan and Kendan Manufacturing Limited concerning the construction of the Bryan residence and the construction of an addition to the plant of Kendan Manufacturing Limited.

Those files which deal with any other matter excepting those mentioned in the preceding paragraph, are therefore ordered returned to the applicant.

The principal contention on behalf of the Minister is that since the authorization conformed to the language of subsection 231(4) the approval was valid. It is also submitted that the authorization should be interpreted in the light of Mr Brown’s affidavit, to relate to all dealings of Collavino Brothers of the kinds referred to in the affidavit and should not be confined solely to dealings with Bryan and Kendan Manufacturing.

The principal contention on behalf of Paroian, Courey is that the authorization should have been quashed outright since it exceeded what was permissable under subsection 231(4). It also submitted that there was sufficient evidence to justify its approval.

In support of the submission that the authorization was valid because it used the very language of subsection 231(4) reference may be made to the following—if not, in some of the cases for their reasoning, at least for their results: Bathville Corporation Ltd et al v Atkinson et al, [1964] 2 OR 17, affirmed [1965] 1 OR 340; [1964] CTC 577; 64 DTC 5113; Burnac Corporation Limited et al v MNR, [1977] CTC 593; 77 DTC 5414, In re Corsini, 79 DTC 5356, the dissenting judgment of MacKay, DJ in Re Collavino Brothers Construction Company Limited, supra, and Granby Construction & Equipment Ltd et al v Mi Iley et al, [1974] CTC 701; 74 DTC 6543.

Mr Rolls, on behalf of Paroian, Courey, relies upon the majority judgments in Re Collavino Brothers Construction Company Limited, supra, in support of his contention that the authorization was broader than permitted by subsection 231(4) and also upon the reasoning of Morand, J in this case, particularly that part placing reliance upon the principles developed in the cases relating to search warrants under the Criminal Code.

In Re Collavino Brothers both Heald, J and Urie, J read “the violation of any provision of this Act or a regulation” in this latter part of subsection 231(4) as referring to the violations mentioned in the earlier part, in respect of which the Minister has reasonable and probable grounds to believe has been committed or is likely to be committed. MacKay, DJ, in dissent, held, emphasizing “any” in “any provision,” that there was no necessary connection between the two violations. Once there is evidence of one violation and the authorization is approved, the authorization properly relates to any violation of the Act or a regulation.

I accept that we should approach legislation of this kind with an appreciation of the value which the courts have traditionally placed on the inviolability of private property, and privacy, against all forms of governmental infringement except that which is strictly in accordance with the law. This necessitates, of course, starting the inquiry with an examination of the language of the statute in question and also keeping in mind that Parliament should be credited with having taken into account the personal value which will be affected by the exercise of the powers being conferred. At some point the legislation, reflecting the judgment of Parliament, will strike a balance between rights of property and privacy, on the one hand, and the powers necessary for the government to execute its responsibility to administer and enforce the Income Tax Act fairly and effectively, on the other.

I agree with the approaches expounded by both Lord Wilberforce and Lord Diplock in a recent judgment of the House of Lords concerned with the interpretation of taxation search and seizure legislation: Commissioner of Inland Revenue and Another v Rossminster Limited, December, 1979. Lord Wilberforce said:

The courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens’ rights to privacy. But they must do this in the context of the times, ie, of increasing Parliamentary intervention, and of the modern power of judicial review. In my respectful opinion appeals to 18th century precedents or arbitrary action by Secretaries of State and references to general warrants do nothing to throw light on the issue. Furthermore, while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process.

Lord Diplock said:

What has to be disclosed upon the face of the search warrant depends upon the true construction of the statute. The construing court ought, no doubt, to remind itself, if reminder should be necessary, that entering a man’s house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So if the statutory words relied upon as authorising the acts are ambiguous or obsure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges in performing their constitutional function of expounding what words used by parliament in legislation, mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect.

Turning to the language of subsection 231(4), in my view it is the natural construction of the provision to read “that may afford evidence as to the violation of any provision of this Act or a regulation” (my emphasis) as encompassing, at least potentially, more violations than that, or those, referred to in the earlier part of the provision. If it were intended to restrict the second mentioned “violation” to that referred to earlier, this could have been done by simply omitting the words “of any provision of this Act or a regulation.” I think that these words make it clear that something more than this was intended. On this point I agree with the reasons of MacKay, DJ delivered in dissent in Re Collavino Brothers Construction Company Limited, supra.

In this regard the language of subsection 231(4) may be usefully contrasted with that in subsection 231(2), which requires the Minister to have “reasonable and probable grounds to believe that there has been a violation of this Act or a regulation and that the seized documents [already seized under paragraph 231 (1 )(d)]... are or may be required as evidence in relation thereto.” This provision, which is in relation to a power of retention rather than of seizure, makes it clear that the documents must have an evidentiary relationship to the specified violation.

Further support for the view that the words in question were used deliberately may be found in the French version of subsection 231(4) which reads “l’infraction de toute disposition de la présente loi ou d’un règlement . .

With respect, I do not appreciate the logic of applying cases interpreting the basic search warrant provision in the Criminal Code, subsection 443(1). The structure, language and subject matter of subsection 231(4) are quite different from those of subsection 443(1). As far as subject matter is concerned, subsection 231(4) is confined to a comparatively narrow range of activity—for all practical purposes, some form of tax evasion—while subsection 443(1) relates, according to its terms, to “any offence against this Act.” Related to this, with subsection 443(1) of the Code as a ready model of search and seizure legislation, it is reasonable to think that subsection 231(4), having regard to its special subject matter, was not drawn to achieve the same effect as subsection 443(1). This reinforces the plain meaning interpretation of subsection 231(4) that the violations in respect of which the search may be authorized are not confined to the violation with respect to which there are reasonable and probable grounds.

Furthermore, I do not interpret subsection 231(4) as requiring the violations in respect of which the search is authorized to be particularized in the authorization beyond using the words of the provision itself. (I shall deal shortly with the necessity to identify the persons whose violations are in question and the premises to be searched.) Cases on subsection 443(1) of the Code, because of the terms of that provision and its subject matter, quite understandably require the offence in respect of which the warrant issues to be particularized in the warrant. The same approach is inapplicable to the wording and subject matter of subsection 231(4).

If subsection 231(4), contrary to my interpretation of it, restricted the search to the violation with respect to which there were reasonable and probable grounds, it would be reasonable to imply a requirement that the offence be particularized in the authorization. However, once it is accepted that the authorization extends to “evidence as to the violation of any provision of this Act or a regulation’’ (my emphasis), ie, violations beyond those with respect to which there are reasonable and probable grounds, I can see no grounds for implying that subsection 231(4) requires a specification in the authorization of particular violations by their alleged facts or times, etc. It is implicit in the legislation that this would not be possible.

No doubt, the intention of the provision is that the primary object of the authorized search will be to obtain evidence of the violations with respect to which there are reasonable and probable grounds, but the authorization will also permit the search for, and seizure of evidence respecting other violations. With regard to such violations, the legislation does not require the setting in motion of a fresh application for a new authorization—and so on from time to time. It may be that this, particularly in an area that is confined to income tax offences, is not a significance departure from existing common law principles (Chic Fashions (West Wales) Ltd v Jones, [1968] 2 QB 299) or statutory provisions (Criminal Code, section 445) which allow, in certain circumstances, more things to be seized than those covered by the search warrant.

With respect to the obvious potential intrusion on personal rights of property and privacy, to which I have already referred, it is obvious that Parliament intended safeguards to be provided by:

(a) the requirement that the application for the authorization be by the Minister of National Revenue or some other senior departmental official (Regulation 900(5));

(b) the requirement that the authorization be approved by a judge, on facts established by evidence on oath, and

(c) that those conducting the search will be officers of the Department and, possibly, other persons named in the authorization and who will, accordingly, have sufficient expertise in the tax matters to confine seizures to what is relevant.

The function of the judge is the most important safeguard. It is implicit in the provision that the judge is not to act as a rubber stamp. “The judge sits to scrutinize [with utmost care] the intended exercise of ministerial discretion.’’ MNR v Coopers and Lybrand, supra, at 506. He has a duty to consider the cogency of the evidence put before him in determining what facts it “establishes’’. He surely has a discretion, in a proper case, to withhold his approval, if he considers that the facts do not justify it. It would not be possible or helpful to say anything more on the subject of the exercise of his discretion, except with respect to one point: although the provision, as I have said, does not require the authorization to be particularized as to specific offences, I would not wish in these reasons to foreclose the possiblity that in some cases, depending upon his view of the facts established, a judge could, as part of a residual discretion, and as an alternative to refusing approval outright, approve an authorization that contained some limitations as to its scope. I express no concluded opinion on this point.

Apart form the matter as to whether the violations in respect of which the search is authorized are required to be particularized, there is the question whether it is necessarily implicit in the legislation that the premises to be searched and the persons in respect of whose violations the search is authorized are required to be identified. There can be no doubt that the premises have to be described in the authorization. They are described in the authorization before us. Further, I would think that in most cases, particular where the premises to be searched are those of third parties, such as lawyers’ offices or banks, it is necessarily implicit that the persons be identified. They were identified in the authorization in the present case—“for documents, books, records, papers or things pertaining or relating to Collavino Brothers Construction Company Limited that may af

As far as previous authority is concerned, reference should be made to the decision of this Court in Bathville Corporation Ltd et al v Atkinson et al, Supra, which was concerned with the validity of an authorization given under the predecessor of subsection 231(4), which was subsection 126(3) of the Income Tax Act, RSC 1952, c 148. That section read:

(3) The Minister may, for any purpose related to the administration or enforcement of this Act, with the approval of a judge of the Exchequer Court of Canada or of a superior or county court, which approval the judge is hereby empowered to give upon ex parte application, authorize in writing any officer of the Department of National Revenue, together with such members of the Royal Canadian Mounted Police or other peace officers as he calls on to assist him and such other persons as may be named therein, to enter and search, if necessary by force, any building, receptacle or place for documents, books, records, papers or things which may afford evidence as to the violation of any provision of this Act or a regulation and to seize and take away any such documents, books, records, papers or things and retain them until they are produced in any court proceedings.

It can be seen that this provision, beginning with “which approval the judge is hereby empowered to give,” is identical to subsection 231(4), apart from the inconsequential substitution of “that” for “which” in “that may afford evidence.” Undoubtedly, the new provision contains a significant change in its opening language from that appearing in subsection 126(3).

The authorization in Bathville Corporation (not quoted in the reasons of either Moorhouse, J or of the Court of Appeal) filed with the Court reads in substantially the same terms as that in this case:

The Assistant Deputy Minister of National Revenue for Taxation with the approval of the Honourable A Alex Cattanach a judge of the Exchequer Court of Canada, granted the 22nd day of October, 1963, hereby authorizes JAMES LAUREN GOURLAY . . . [several other persons named], officers of the Department of National Revenue, or any of them, together with such members of the Royal Canadian Mounted Police or other peace officers as they, or any of them, may call on to assist them, or any of them to enter and search, if necessary by force, the following premises and any receptacles or places therein: . . . [four premises described]

for documents, books, records, papers or things which may afford evidence as to the violation of any provision of the Income War Tax Act, The Income Tax Act or the Income Tax Act or a regulation and to seize and take away any such documents, books, records papers or things and retain them until they are produced in any court proceedings.

If anything, it was in broader terms because it did not specify the person whose violations were in question.

The authorization had been attacked on the ground that it did not comply with Criminal Code search warrant principles ([1964] 2 OR at 19) and that the Exchequer Court Judge, who had approved the authorization, had not acted judicially and had delegated his powers to the persons named in the authorization ([1965] 1 OR at 341). This latter submission was one way of saying that the authorization should have specified particular violations. At 341-42 of [1965] 1 OR Porter, CJO said on behalf of the Court of Appeal:

This issuance of the authorization in the first instance, depends upon the view of the Minister that a purpose related to the administration or enforcement of the Act will or may be served by the exercise of the powers conferred upon him by the provisions of s 126(3). Thereupon a Judge of the Exchequer Court or of a superior or County Court may be asked upon an ex parte application to approve the exercise of the ministerial power. We take the view that there was amply sufficient material for the learned Exchequer Court Judge to grant the approval sought in the terms in which it was granted and it cannot be said that his powers under the section were not exercised judicially or that he had failed to give a lawful approval to the Minister’s exercise of his powers under s-s (3).

Mr Rolls submits that Bathville Corporation is of no assistance because (a) the language of the sections has changed and (b) its “underpinning” was that the approving judge was acting persona designate—a view that is now known to be wrong: MNR v Coopers and Lybrand, supra. With respect I do not think that either of these features is of a distinguishing nature.

As far as the change in language is concerned it would seem that the reasoning in Bathville would apply with even greater force to the present provision. It might well have been thought that the scope of “which may afford evidence as to the violation of any provision of this Act or a regulation” would have been confined by particularization in an actual authorization by the “purpose related to the administration or enforcement of this Act” as set forth in the material before the judge. However, the Court clearly approved an authorization repeating the language of the statute. For the reasons which I have already given, there is no reasonable basis for interpreting the present legislation as requiring that the authorized search be confined to the violation with respect to which there are reasonable and probable grounds.

It is true that Moorhouse, J placed some weight on the fact that the approving judge was acting as a persona designate, and hence, apparently, was not required to act judicially, but this does not appear to have been a ground of the Court of Appeal’s judgment. Indeed, in the passage which I have quoted, Porter, CJO treats a requirement to act judicially as being relevant. Since the power was conferred on a judge I would think, with respect, that the duty to act judicially must have existed, even if the judge was acting as a persona designata.

On the basis of the foregoing, I consider the form of the authorization before us to be proper. Further, it cannot be said that there was no evidence capable of supporting its approval by the judge. The affidavit sufficiently covered the matters of reasonable and probable grounds of belief that a violation of the Act had been committed and furnished reasons justifying the inclusion of the premises in question in the authorization.

Accordingly, I see no grounds for quashing the approval of Judge Zalev. The matter of solicitor-client privilege was not considered by Morand, J, nor dealt with in argument before us, and neither was the question of whether all the documents seized were in fact within the terms of the authorization.

For the foregoing reasons I would allow the Minister’s appeal, set aside the order of Morand, J and dismiss the application to set aside, or quash, Judge Zalev’s approval. I would also dismiss the cross-appeal.