Her Majesty the Queen v. Michael E. Coghlan, [1994] 1 CTC 164

Ratushny, J.:— The accused is charged under the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") with 54 counts of income tax evasion in connection with certain of his clients. The accused is an accountant. At issue is the reasonableness of various searches and seizures performed by Revenue Canada officials under the Act.

The Crown's case depends on the admissibility of evidence gathered by Revenue Canada under its inspection powers in subsection 231.1(1) of the Act and of evidence seized pursuant to search warrants obtained under section 231.3 of the Act. On January 21, 1993 during the course of this trial, the Supreme Court of Canada in Baron v. Canada, [1993] 1 S.C.R. 416, [1993] 1 C.T.C. 111, 93 D.T.C. 5018 declared section 231.3 of the Act to be of no force and effect because it violated section 8 of the Canadian Charter of Rights and Freedoms. Defence counsel then requested a voir dire to determine the admissibility of the evidence obtained pursuant to various search warrants and it is this motion which is the subject of this decision. By Baron, he submits, the searches have been rendered warrantless so that they are therefore prima facie unreasonable and in violation of section 8 of the Charter, pursuant to Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 84 D.T.C. 6167 and R v. Collins, [1987] 1 S.C.R. 265, 38 D.L.R. (4th) 508 and, by subsection 24(2) of the Charter, this search warrant evidence should be excluded.

Burden of proof

Crown counsel does not concede that the searches and seizures under warrant were rendered warrantless as a consequence of the Baron decision, but concedes only that the search warrants were obtained under section 231.3 of the Act, which section subsequently became of no force and effect.

I agree that searches and seizures under warrant do not automatically become warrantless actions and therefore prima facie unreasonable because the authorizing legislation is subsequently declared ineffective. The reason for the distinction between search and seizure with a search warrant and without a search warrant is, of course, rooted in the common law and the "right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search" (R. v. McAvoy (1970), 74 W.W.R. 688, 12 C.R.N.S. 56, at page 692 (C.R.N.S. 60), (N.W.T. Terr. Ct.), citing Weaver, J. in McClurg v. Brenton, 123 Iowa 368 (1904)). Out of this has evolved the basic rule, as expressed by Fontana, J. in The Law of Search and Seizure in Canada, Butterworths, 3rd ed., at page 567, that except where otherwise expressly authorized by legislation, all entries and searches of private premises are to be conducted under power of a search warrant or similar authorization. From these basic principles and the constitutional protection against unreasonable search or seizure in section 8 of the Charter, the courts have developed a presumption, as stated in Collins at pages 277-78 (D.L.R. 520-21), that warrantless searches are unreasonable under section 8 of the Charter and the party justifying the warrantless search is required to rebut this presumption.

The presumption exists, presumably, because the basic rule has not been followed in that prior authorization has not been obtained. However, where it has been obtained but is subsequently voided, the presumption should not have to operate to require a justification. There is nothing to justify regarding the failure to get a search warrant. When the warrant was obtained, it was authorized by law.

However, all of this only affects the burden of proof. Whether the actions are considered warrantless or not, the underlying issue remains the same, namely, the reasonableness of the various searches and seizures.

The searches and seizures complained of by defence counsel involve audits of business records of certain of the accused's clients, performed under the authority of subsection 231.1(1) of the Act, all of which are certainly legislatively authorized warrantless actions, followed by searches and seizures under warrants obtained under the now invalid section 231.3.

In these circumstances and because at least some of Revenue Canada's actions were warrantless, it was, in my view, fairer to require the Crown to justify, on a balance of probabilities, that all of Revenue Canada's actions were reasonable, whether those actions were warrantless because of being performed under their inspection and audit powers, or because of being performed pursuant to warrants obtained under legislation subsequently struck down. The motion has proceeded on this basis.

Relevant legislation

Income Tax Act

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 carried 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.

(2) Prior authorization.— Where any premises or place referred to in paragraph (1) (c) is a dwelling-house, an authorized person may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant 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.

(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.

(3) Evidence.— 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.

(4) Contents of warrant.— 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.

(5) Seizure of document.— 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.

231.5(1) Copies.— Where any document is seized, inspected, examined or provided under sections 231.1 to 231.4, the person by whom it is seized, inspected or examined or to whom it is provided or any officer of the Department of National Revenue may make, or cause to be made, one or more copies thereof and any document purporting to be certified by the Minister or an authorized person to be a copy made pursuant to this section is evidence of the nature and content of the original document and has the same probative force as the original document would have if it had been proven in the ordinary way.

Canadian Charter of Rights and Freedoms

8. Everyone has the right to be secure against unreasonable search or seizure.

Facts

Pre-Warrant Investigations

The relevant facts are not in dispute.

The 54 alleged offences involve the taxation years 1985, 1986 and 1987 for eight different groups of taxpayers, all of whom were clients of the accused and his accounting practice, and in addition, for one taxpayer only, the taxation year 1984.

Revenue Canada initially obtained evidence against the accused through its investigative powers under subsection 231.1(1) of the Income Tax Act. John Ellis, of the Special Investigations section of Revenue Canada who was the chief investigator on the accused's file, testified that by August, 1988, as a result of various audits, he had concerns regarding the bonus and source deduction methods used by the accused for some of his clients.

Starting in January 1988, an audit had been performed on one of the accused’s clients, Athens Rugs Ltd., by Mr. Aime Thibeault, a Revenue Canada auditor. Mr. Thibeault realized that there was a problem on day one of the audit regarding shareholders getting company benefits and not including these in income. On April 15, 1988, he referred the file to Mr. Ellis so that Special Investigations could, as he phrased it, do a preliminary investigation to confirm his audit, do a full scale investigation, or do nothing.

Also in January 1988, another Revenue Canada auditor, Michael Gibbons, had commenced an audit of a different group of the accused's clients: Dalmacija Forming Ltd. and its shareholders Ante Bulat and Anka Bulat. This audit was delayed until May 1988 and by July 1988, Mr. Gibbons thought he might have a tax evasion case. He spoke to Pierre Picard of Special Investigations regarding the evidence he should get and then gave a list of outstanding documents to the accused. In August 1988 he referred the file to Special Investigations because he was unable to resolve the problems which had been revealed.

As a result of this and other information, Mr. Ellis asked for and got additional information regarding three of the accused's clients: Athens Rugs Ltd., Dalmacija Forming Ltd. and Benac Roofing Company Ltd. because, as he testified, he suspected the accused was involved and might have committed an offence and he was trying to satisfy himself that there wasn't an explanation regarding the amounts not included in income.

In May 1988, Mssrs. Ellis and Thibeault spoke regarding the Athens Rugs Ltd. file and certain information Mr. Ellis wanted. Mr. Thibeault requested and received some information for Special Investigations right up to January 31, 1989 when the searches and seizures under warrant occurred.

Mr. Gibbons was asked by Special Investigations, after his August 2, 1988 referral of the Dalmacija Forming Ltd. file to them, to follow up on outstandng matters he had noted in his audit. He got some documents form the accused's office by calling the accused in advance and receiving the documents or copies he was looking for.

In August 1988, Mr. Ellis directed there be an audit of Benac Roofing Co., regarding its payroll situation, because he said he didn’t have reasonable and probable grounds to believe an offence had been committed. He did not direct that the audit be performed at the accused's office, just that there be a verification of certain evidence regarding the books and records of Benac, wherever those records might be. At the time of the Benac audit, he said it was Benac and not the accused who was the subject of the audit. Gilles Chartrand, a Revenue Canada payroll auditor, conducted the audit in August and September, 1988, mainly at the accused's business premises, and concluded from it that certain bonuses had been paid to shareholders that had not been declared as income. He therefore referred the file to Special Investigations and Mr. Ellis.

After this audit, Mr. Ellis said that Special Investigations believed they had a pattern of tax evasion and that the accused was the common denominator.

Searches and seizures under warrant

On January 12, 1989, Mr. Ellis signed Informations he had drafted, to obtain search warrants based upon five different locations of the accused's clients’ records. He stated in each Information that he had reasonable and probable grounds to believe that particular offences had been committed. He testified that one of the sources of his belief was evidence obtained by Mr. Chartrand in the audit of Benac Roofing. On January 20, 1989, five search warrants were obtained under section 231.3 of the Act, authorizing specific searches regarding specific clients. Two of the locations authorized were the accused's home and his business premises.

The searches and seizures under these warrants all occurred on January 31, 1989. Briefings were held prior to this date, involving between 40 to 50 search officers from Revenue Canada, to instruct them on the parameters of the proposed searches. Part of Mr. Ellis’ instructions to them was that they were not to take notes and they were to search for and seize only those documents listed on each search warrant.

Accused's office

The search at the accused's office took approximately four and a half hours. The search warrant authorized seizure of certain documentation regarding only three of the accused's clients: Athens Rugs Ltd., Dalmacija Forming Ltd. and Benac Roofing Co. Two boxes of documents were seized.

The search officers went through all documentation in the office to determine whether it was relevant to the search warrant. Some were experienced searches; some were not and some were clearer than others as to what they were looking for. One search officer, Barry Casselman, noted down bank names and their addresses, bank account numbers and a legal description of real property, but was told by the search coordinator, Bill Morash, that they were not to be seized. Mr. Caselman denied that the real focus of the search, as revealed by his notations, was the accused's personal records.

Accused's home

The search of the accused's home did not result in any seizures. Shawn Coghlan, the accused's son who was 13 years at the time, said that he was asleep on the morning of the search and two people entered his bedroom and woke him up. One of them was wearing a uniform with shoulder flashes. In the course of their search, the dumped books off his bookshelf and dropped articles of clothing and part of a humidifier on the floor.

This evidence is not supported by any of the other four witnesses who testified and were present during this search. Both RCMP officers said a young lad answered the door at the start of the search and all four witnesses said nothing was dumped on the floor and no furniture was moved. Janice Shelvock, a Revenue Canada search officer, did make a note of some items not listed on the search warrant: a pass book, a bank savings account number, two unrelated names and phone numbers, a safety deposit box key and a telephone book. She later crossed out these items and nothing was seized. Pierre Picard, her search partner, also noted items not on the search warrant: a bank RRSP term deposit, the accused's wife's first name, her social insurance number, an amount of money, bank account numbers and addresses, two Canada savings bond numbers, an application form to get a Canada savings bond and a deposit certificate for "Dorothv". He explained that it was his professional practice, if a large amount of money was involved regarding non-search warrant items and there was a large amount involved here, to note it down. He denied the notes were for the purposes of gathering evidence against the accused. Nothing was seized and he said he simply gave his notes to Mr. Ellis as part of their usual procedures.

Issues

(a) Subsection 231.1(1) Income Tax Act: the pre-warrant searches

Defence counsel has not challenged the constitutionality of subsection 231.1(1) of the Income Tax Act, so that the issues regarding this portion of Revenue Canada’s investigation of his client, are, in my opinion, the following:

1. Does subsection 231.1(1) of the Income Tax Act authorize a search or seizure within the meaning of section 8 of the Charter? In my opinion it does.

2. If it does, were the subsection 231.1(1) searches performed by Revenue Canada officials, being warrantless searches, reasonable as being within the powers granted by the Income Tax Act? In my opinion, they were.

With respect to the first issue, there is no question in my view that by the plain wording of subsection 231.1(1), at least warrantless searches are contemplated within the meaning of section 8 of the Charter, for the same reasons as enunciated by Wilson, J. in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, [1990] 2 C.T.C. 103, 90 D.T.C. 6243. There, Madam Justice Wilson analyzed the legislative scheme in place under the Income Tax Act. She stated at page 641 (C.T.C. 110, D.T.C. 6248) that the Income Tax Act is essentially a regulatory statute since it controls the manner in which income tax is calculated and collected. She observed that the purpose of the investigative powers is not to penalize criminal conduct but to enforce compliance with the Act. She concluded, at page 642 (D.L.R. 578-79) that the state authorized inspections in the sections in issue before her, being the now repealed subsection 231(3) compelling production of a wide array of documents, reached beyond the strict filing and maintenance requirements of the Act and therefore constituted a "seizure" since it infringed on the accused's expectations of privacy.

It is this expectation of privacy, she reasoned, which served to distinguish administrative or regulatory inspections which do not constitute searches and seizures protected by section 8 of the Charter, from those that do have section 8 protection. To answer whether a seizure within the meaning of section 8 takes place involves considering the purposes of section 8 of tne Charter as enunciated by Dickson, J. in Hunter, supra, one of them being protection of the individual’s reasonable expectation of privacy. She said, at pages 641-42 (C.T.C. 110, D.T.C. 6248):

Undoubtedly there will be instances in which an individual will have no privacy interest or expectation in a particular document or article required by the state to be disclosed. Under such circumstances, the state-authorized inspection or the state demand for production of documents will not amount to a search or seizure within section 8: see R v. Hufsky, [1988] 1 S.C.R. 621, 40 C.C.C. (3d) 398.

She concluded that the section before her was a legislative seizure. By the same analysis, I conclude that subsection 231.1(1) does amount to at least a search within the meaning of section 8 of the Charter, because the taxpayer, and certainly the accused as taxpayer in this instance where the documents relate to confidential information regarding his clients, has a privacy interest or an expectation of privacy in the wide range of information and documents included and able to be accessed by the powers granted under this section.

With respect to the second issue, the reasonableness of these warrantless searches as being within the powers granted Revenue Canada under subsection 231.1(1) of the Act, defence counsel’s position is that Revenue Canada cannot use its administrative tools to further criminal investigations. As soon as Revenue Canada suspected the accused had committed a criminal offence, which on the evidence is sometime between January and August, 1988, they could no longer search for information under these administrative powers; they had to apply for a search warrant to be able to continue their searches. Since they did not, their audit actions after this suspicion was formed amount to unreasonable warrantless searches. To phrase this another way, defence counsel is, in effect, arguing that Revenue Canada’s administrative inspection powers including their audit powers, are only reasonable searches so long as no criminal offence is suspected. Once a criminal offence is suspected, a criminal investigation has begun and any search and seizure requires prior judicial approval.

Crown counsel summarizes the issue as being the extent to which it is permissible for Revenue Canada officials under subsection 231.1(1) of the Income Tax Act to follow up suspected offences by audits and further inquiries of the taxpayer, before a search warrant is granted. He submits that all the audits in this case were conducted in the normal course of any audit process, that they were bona fide audits, that they were not used as a subterfuge to get evidence when reasonable and probable grounds of an offence already existed, and that to require, as defence counsel argues, that the audit be discontinued once there is a suspicion of an offence, is to place an unreasonable embargo on audit activities and one which is particularly unrealistic in circumstances such as these where taxpayers other than the accused are being audited.

I cannot agree with defence counsel's position. It is more properly a constitutional challenge to the section, which defence counsel has not argued, but even if I consider the reasonableness of the searches in the context of whether Revenue Canada officials obtained their information within the powers granted to them under this section, there is nothing in the plain wording of subsection 231.1(1) which supports defence counsel's argument, nor is there anything supportive, as far as I am aware, in the jurisprudence.

Wilson, J. states at pages 648-50 (C.T.C. 114, D.T.C. 6250-51) of McKinlay, supra:

Accordingly, the Minister of National Revenue must be given broad powers in supervising this regulatory scheme to audit taxpayers’ returns and inspect all records which may be relevant to the preparation of these returns. The Minister must be capable of exercising these powers whether or not he has reasonable grounds for believing that a particular taxpayer has breached the Act. Often it will be impossible to determine from the face of the return whether any impropriety has occurred in its preparation. A spot check or a system of random monitoring may be the only way in which the integrity of the tax system can be maintained. If this is the case, and I believe that it is, then it is evident that the Hunter criteria are ill-suited to determine whether a seizure under subsection 231(3) of the Income Tax Act is reasonable. The regulatory nature of the legislation and the scheme enacted require otherwise. The need of random monitoring is incompatible with the requirement of Hunter, supra, that the person seeking authorization for a search or seizure have reasonable and probable grounds, established under oath, to believe that an offence has been committed. If this Hunter criteria is inapplicable, then so too must be the remaining Hun ter criteria since they all depend for their vitality upon the need to establish reasonable and probable grounds. For example, there is no need for an impartial arbiter capable of acting judicially since his central role under Hunter is to ensure that the person seeking the authorization has reasonable and probable grounds to believe that a particular offence has been committed, that there was reasonable and probable grounds to believe that the authorization will turn up something relating to that particular offence, and that the authorization only goes so far as to allow the seizure of documents relevant to that particular offence. . . .

In my opinion, subsection 231(3) provides the least intrusive means by which effective monitoring of compliance with the Income Tax Act can be effected. It involves no invasion of a taxpayer's home or business premises. It simply calls for the production of records which may be relevant to the filing of an income tax return. A taxpayer's privacy interest with regard to these documents vis-à-vis the Minister is relatively low. The Minister has no way of knowing whether certain records are relevant until he has had an opportunity to examine them. At the same time, the taxpayer's privacy interest is protected as much as possible since section 241 of the Act protects the taxpayer from disclosure of his records or the information contained therein to other persons or agencies.

As I interpret those passages, Madam Justice Wilson is saying that the Hunter criteria for a search to be reasonable, that is a system of prior authorization, were formulated regarding the validity of a section which was criminal or quasi-criminal in nature. For the regulatory nature of the Income Tax Act and the section before her, these criteria are inapplicable as they require, essentially, a search warrant where the evidence sought is of a particular offence. However, before there is evidence of a particular offence, the state, in these regulatory circumstances, has to be able by its broad powers, to determine if any impropriety has occurred.

Madam Justice Wilson does issue a caution, at page 649 (C.T.C. 114, D.T.C. 6251) of McKinlay, supra:

This is not to say that any and all forms of search and seizure under the Income Tax Act are valid. The state interest in monitoring compliance with the legislation must be weighed against an individual’s privacy interest. The greater the intrusion into the privacy interests of an individual, the more likely it will be that safeguards akin to those in Hunter, supra, will be required. Thus, when the tax officials seek entry onto the private property of an individual to conduct a search or seizure, the intrusion is much greater than a mere demand for production of documents. The reason for this is that, while a taxpayer may have little expectation of privacy in relation to his business records relevant to the determination of his tax liability, he has a significant privacy interest in the inviolability of his home.

I cannot see how, even weighing the state interest in monitoring compliance with the Income Tax Act against an individual’s privacy interest, that the actions of the Revenue Canada officials in the circumstances of this case, being as complex as it is by sheer volume alone, could be outside the powers conferred on them by subsection 231.1(1) or, and this gets into the realm of constitutionality of the section, how they could be considered unreasonable encroachments of the accused's right to privacy. For Mr. Ellis to be able to apply for a search warrant, he has to be able, not only under section 231.3 of the Income Tax Act but also under the Hunter criteria, to state the offences clearly, to state that he had reasonable grounds to believe they had been committed and to give a relatively detailed” description of the documents to be seized. If defence counsel’s argument were valid, he would either be arguing that search warrants could never be granted in regulatory circumstances such as this, or that search warrants should allow the authorities to go on a fishing expedition because they have to be applied for at the suspicion stage and before reasonable grounds exist. Neither situation is the law. As stated by Fontana, J. in The Law of Search and Seizure in Canada at page 104, suspicion must be supported by adequate facts. Under the legislative scheme of the Income Tax Act and for effective monitoring of compliance with it, it is reasonable that these adequate facts be able to be obtained from documentation relevant to the filing requirement, through Revenue Canada's inspection and audit powers.

If I am correct in concluding that subsection 231.1(1) of the Income Tax Act does authorize a wide range of warrantless but reasonable searches and seizures so as to monitor compliance with the Act, at what point does Revenue Canada have to obtain a search warrant?

The answer again lies, in my opinion, in the determination of what a reasonable search or seizure is, in the regulatory context as opposed to the criminal or quasi-criminal context. So long as the searches or seizures are for the bona fide purpose of determining compliance with the Income Tax Act, whether or not Revenue Canada suspects a criminal offence during that time, then in my view a search warrant is not required. However, as soon as Revenue Canada decides to lay criminal charges, it is then that the Hunter criteria and the concerns expressed by Dickson, J. apply. Evidence to be used in a criminal prosecution is being sought, as opposed to a monitoring of compliance or even a gathering of reasonable and probable grounds to support a suspicion of an offence. It is at that time that the taxpayer's reasonable expectation is one of privacy from state intrusion, that the state will leave him alone and that the state will not collect evidence to be used in criminal proceedings against him without authorization.

This, in my opinion, is a reasonable limitation on Revenue Canada's inspection powers under subsection 231.1(1). It balances the state's need for information to be able to monitor and enforce compliance, with the individual's interest at being left alone when the state's need crosses over from being a regulatory need to the gathering of evidence for a crime which the state then suspects on reasonable and probable grounds has been committed.

On Mr. Ellis’ evidence, it is clear that he was requesting further information from Revenue Canada auditors to try, as he said, to “satisfy himself that there wasn't an explanation” and later, to gather reasonable and probable grounds of the offences. It was only after Mr. Chartrand's audit in respect of Benac Roofing Co. that he believed a pattern was established with the accused as the "common denominator".

Roger Lapointe, Mr. Ellis’ group head during the investigation against the accused, said his understanding of the department's inspection powers in the Income Tax Act was that an auditor can be sent in when tax evasion is suspected, but they have to apply for a search warrant once they are convinced an offence has been committed. The department's terminology for these different stages is preliminary investigation and full-scale investigation. His understanding, in my opinion, is generally correct.

On the basis of the evidence and for the reasons I have stated, I therefore agree with the Crown's submissions. I am satisfied on a balance of probabilities that Revenue Canada’s investigations of the accused were bona fide audits conducted in the normal course and that even when a criminal offence was suspected, they were, in the circumstances of this case, reasonable, warrantless searches under subsection 231.1(1) of the Income Tax Act. Section 8 of the Charter has therefore not been infringed by these searches.

(b) Searches and seizures under warrant

Defence counsel's objection to the searches under warrant are all improprieties [which] occurred during the searches of the accused’s home and office. Certain Revenue Canada officials noted down information not included in the search warrant and defence counsel submits that what they were really doing was going on a fishing expedition for evidence against the accused in connection with his personal affairs and his own income as opposed to that of his clients.

There is no evidence to support this position. I agree that the personal information recorded both at the accused's home and his office was not relevant to the search and should not have been noted. However in the circumstances and on the evidence, it served as no more than a reminder to the searcher to ask his or her supervisor as to whether it was relevant. In each case, the answer was no and the document was not seized. For the office premises, the searches were complex and a myriad of documents had to be searched for relevancy. I do not find that the improprieties which occurred, when considered in this context, affected the reasonableness of the search as a whole of either the office or the home.

Nor can I accept Shawn Coghlan’s evidence that search officers rifled through his room, given the inconsistencies between his evidence and the evidence of the other witnesses.

From all of the evidence, I am satisfied on a balance of probabilities that the searches under warrant were reasonable in that they were conducted in a reasonable manner and further, that all search officers acted in good faith in accordance with what they believed was required of them under section 231.1 of the Income Tax Act.

The motion is therefore denied and the evidence seized pursuant to the search warrants is admissible.

Motion denied.