Desjardins,
J.A.
(Pratte
and
Stone,
JJ.A.
concurring):—The
issue
raised
in
this
appeal
concerns
essentially
the
constitutional
validity
of
section
231.3
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
added
by
S.C.
1986,
c.
6
("the
Act")
in
view
of
section
8
of
the
Canadian
Charter
of
Rights
and
Freedoms
("the
Charter").
During
the
fiscal
years
1984,
1985
and
1986,
the
respondent
conducted
audits
and
reviews
with
respect
to
the
activities
of
the
appellants
suspecting
that
a
scheme
to
inflate
scientific
research
expenditures
had
been
carried
on.
For
some
time,
the
appellants
provided
voluntarily
information
and
documents
at
the
request
of
the
respondent.
Then,
on
April
30,
1987,
an
application
was
made
by
the
respondent
pursuant
to
section
231.3
of
the
Income
Tax
Act
for
warrants
authorizing
a
special
investigator
of
the
Department
of
Revenue
Canada
together
with
officers
of
the
Department
of
National
Revenue
to
enter
and
search
specific
places
where
the
appellants
were
carrying
on
their
businesses.
The
warrants
issued
indicated
the
section
of
the
Income
Tax
Act
with
regard
to
which
the
deponent
had
reasonable
grounds
to
believe
that
an
offence
had
been
committed,
the
corporations
and
individuals
concerned,
the
place
to
be
searched
and
a
list
describing
in
general
terms
the
books,
records,
documents
or
things
pertaining
to
a
specified
period
of
time
and
belonging
to
the
parties
concerned.
The
appellants
applied
on
July
3,
1987
to
have
the
warrants
quashed
but
were
unsuccessful.
Hence
the
present
appeal
from
the
decision
of
the
motions
judge.
The
appellants
submit
that
the
information
in
support
of
the
warrants
failed
to
contain
material
facts
or
misstated
material
facts
such
that
the
issuing
justice
was
unable
to
make
a
judicial
determination
as
to
whether
the
warrants
should
have
issued.
They
add
that
there
were
alternative
sources
for
the
information
sought
but
that
the
applicant
failed
to
take
any
reasonable
steps
to
obtain
the
information
from
that
alternative
source
and
failed
to
advise
the
issuing
judge
of
those
facts.
They
submit
that
the
warrants
are
too
general
and
too
vague
in
relation
to
the
information
before
the
issuing
judge.
Finally,
they
say
that
the
authorizing
legislation
being
section
231.3
of
the
Income
Tax
Act
is
ultra
vires
on
the
basis
that
it
contravenes
the
Charter
and
cannot
support
the
warrants
herein.
Their
attack
is
directed
both
towards
a
seizure
of
things
referred
to
in
the
warrant
(subsection
231.3(3))
and
a
seizure
of
things
not
identified
in
the
warrant
which
the
person
executing
the
warrant
"believes
on
reasonable
grounds
affords
evidence
of
the
commission
of
an
offence
under
this
Act"
(subsection
231.3(5)).
Section
231.3
of
the
Act
(added
by
S.C.
1986,
c.
6)
reads
thus:
231.3
Search
Warrant.
(1)
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.
(6)
Retention
of
things
seized.
Subject
to
subsection
(7),
where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
shall,
unless
the
Minister
waives
retention,
order
that
it
be
retained
by
the
Minister,
who
shall
take
reasonable
care
to
ensure
that
it
is
preserved
until
the
conclusion
of
any
investigation
into
the
offence
in
relation
to
which
the
document
or
thing
was
seized
or
until
it
is
required
to
be
produced
for
the
purposes
of
a
criminal
proceeding.
(7)
Return
of
things
seized.
Where
any
document
or
thing
seized
under
subsection
(1)
or
(5)
is
brought
before
a
judge
or
a
report
in
respect
thereof
is
made
to
a
judge,
the
judge
may,
of
his
own
motion
or
on
summary
application
by
a
person
with
an
interest
in
the
document
or
thing
on
three
clear
days
notice
of
application
to
the
Deputy
Attorney
General
of
Canada,
order
that
the
document
or
thing
be
returned
to
the
person
from
whom
it
was
seized
or
the
person
who
is
otherwise
legally
entitled
thereto
if
the
judge
is
satisfied
that
the
document
or
thing
(a)
will
not
be
required
for
an
investigation
or
a
criminal
proceeding,
or
(b)
was
not
seized
in
accordance
with
the
warrant
or
this
section.
(8)
Access
and
copies.
The
person
from
whom
any
document
or
thing
is
seized
pursuant
to
this
section
is
entitled,
at
all
reasonable
times
and
subject
to
such
reasonable
conditions
as
may
be
imposed
by
the
Minister,
to
inspect
the
document
or
thing
and
to
obtain
one
copy
of
the
document
at
the
expense
of
the
Minister.
Subsection
231.3(1)
states
that
'A
judge
may
.
.
."
Subsection
231.3(3)
states
that
'A
judge
shall
.
.
.”
It
would
therefore
appear
from
the
language
of
subsection
231.3(3)
that
if
the
issuing
judge
comes
to
the
conclusion
that
the
conditions
of
paragraphs
231.3(3)(a),
(b)
and
(c)
are
met,
he
need
not
nor
is
he
permitted
to
consider
whether
there
has
been
a
previous
substantive
voluntary
compliance
by
the
taxpayer,
whether
further
documents
might
be
remitted
voluntarily,
or
whether
the
applicant
for
the
warrants
has
taken
all
reasonable
steps
to
obtain
the
information
from
an
alternative
source
before
applying
for
the
warrants.
In
brief,
if
the
conditions
are
met,
he
must
issue
the
warrant.
In
view
of
this,
the
appellants'
submissions
can
be
reduced
to
the
one
issue
as
to
whether
a
search
warrant
which
meets
the
requirements
of
subsection
231.3(3)
of
the
Act
is
a
reasonable
search
within
the
meaning
of
section
8
of
the
Charter.
Section
231.3
of
the
Act
came
as
an
amendment
resulting
from
court
decisions
holding
that
the
predecessors
of
that
section,
namely
subsections
231(4)
and
231(5)
were
in
violation
of
section
8
of
the
Charter.
Subsections
231(4)
and
231(5),
now
repealed,
read
thus:
(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
estabishing
the
facts
upon
which
the
application
is
based.
In
M.N.R.
v.
Kruger,
[1984],
2
F.C.
535
at
549;
[1984]
C.T.C.
506
(F.C.A.)
decided
before
the
Supreme
Court
of
Canada
rendered
its
decision
in
Hunter
v.
Southam
Inc.,
[1984]
2
S.C.R.
145;
14
C.C.C.
(3d)
97,
held
that
subsection
231(4)
contravened
section
8
of
the
Charter
in
that
it
gave
the
Minister,
when
he
believed
one
particular
offence
has
been
committed,
the
power
to
authorize
a
general
search
and
seizure
relating
to
the
violation
of
any
of
the
provisions
of
the
Act
or
regulations
made
under
it.
(See
also
Vespoli
v.
The
Queen,
[1984]
C.T.C.
519;
84
D.T.C.
6489
(F.C.A.)
rendered
the
same
day).
In
The
Queen
v.
Print
Three
Inc.,
[1985]
2
C.T.C.
48;
20
C.C.C.
(3d)
392
(Ont.
C.A.),
decided
after
Hunter
v.
Southam,
additional
reasons
were
given
by
the
Ontario
Court
of
Appeal
in
support
of
the
conclusion
that
subsection
231(4)
was
in
contravention
of
section
8
of
the
Charter.
It
was
said
at
50
(C.C.C.
396):
In
our
view,
there
are
additional
reasons
to
those
relied
upon
by
the
Federal
Court
of
Appeal
for
holding
the
subsection
to
be
in
breach
of
subsection
8.
It
is
clear
that
to
meet
the
standards
of
reasonableness
there
must
first
be
an
independent
arbiter
(judge)
who
is
satisfied
that
there
are
reasonable
grounds
for
believing
that
an
offence
has
been
committed
(see
Hunter
et
al
v.
Southam
Inc.
supra).
In
subsections
231(4)
and
(5),
it
is
the
Minister
who
has
to
have
the
reasonable
and
probable
grounds
and
there
is
no
standard
or
conditions
precedent
set
out
for
the
judge
on
which
to
base
his
assessment
of
whether
the
Minister's
belief
is
properly
founded.
Mr.
Kelly
argued
that
the
only
reasonable
construction
of
subsection
5
is
that
facts
must
be
laid
before
the
judge
so
he
can
be
satisfied
that
the
Minister
has
reasonable
and
probable
grounds.
Even
if
the
subsection
could
be
so
construed,
there
are,
as
we
have
noted,
additional
flaws
in
subsections
231(4)
and
(5).
There
is
no
requirement
that
the
Minister
have
grounds
to
believe
that
evidence
is
likely
to
be
found
at
the
place
of
the
search
and
there
is
no
requirement
that
he
present
such
grounds
to
the
judge.
There
is,
equally,
no
direction
as
to
what
is
to
be
issued
by
the
judge
in
granting
his
approval".
It
is
the
Minister
who
issues
what
is,
in
essence,
the
warrant.
Finally,
the
Minister
is
not
required
in
the
authorization
to
specify
the
things
to
be
searched
for.
[Emphasis
added.]
The
present
subsection
231.3(3)
requires
that
the
judge,
who
issues
the
warrant,
be
satisfied
that
the
Minister
has
reasonable
ground
to
believe
that
an
offence
has
been
committed,
that
specified
things
are
to
be
searched
for
and
that
the
evidence
is
likely
to
be
found
at
the
place
of
the
search
indicated
in
the
application.
These
conditions
meet
the
deficiencies
noted
in
the
above
decision
with
regard
to
the
former
subsections
231(4)
and
231(5).
Section
8
of
the
Charter
reads
thus:
8.
Everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure.
In
Hunter
v.
Southam
Inc.,
supra,
Dickson,
J.
(as
he
then
was)
stated
at
254
[S.C.R.]
the
minimum
standard
requirements
set
by
that
section:
In
cases
like
the
present,
reasonable
and
probable
grounds,
established
upon
oath,
to
believe
that
an
offence
has
been
committed
and
that
there
is
evidence
to
be
found
at
the
place
of
the
search,
constitutes
the
minimum
standard,
consistent
with
s.
8
of
the
Charter,
for
authorizing
search
and
seizure.
Insofar
as
s.
10(1)
and
(3)
of
the
Combines
Investigation
Act
does
not
embody
such
a
requirement,
I
would
hold
them
to
be
further
inconsistent
with
s.
8.
He
also
stated
at
250
[S.C.R.]
:
For
such
an
authorization
(search
and
seizure)
procedure
to
be
meaningful
it
is
necessary
for
the
person
authorizing
the
search
to
be
able
to
assess
the
evidence
as
to
whether
that
standard
has
been
met,
in
an
entirely
neutral
and
impartial
manner
.
.
.
The
person
performing
this
function
need
not
be
a
judge,
but
he
must
at
a
minimum
be
capable
of
acting
judicially.
[Emphasis
added.]
There
is
no
doubt
that
subsection
231.3(3)
meets
these
minimum
standards.
I
add
that
the
possible
difference
between
the
words
“reasonable
and
probable
grounds"
in
the
former
subsection
231(4)
and
the
words
"reasonable
grounds"
in
subsection
231.3(3)
was
not
argued
as
such
before
us
as
it
was
before
Lysyk,
J.
in
Kourtessis
v.
M.N.R.,
[1989]
1
C.T.C.
56;
89
D.T.C.
5214.
I
have
no
difficulty
with
the
conclusion
at
which
Lysyk,
J.
has
arrived.
Having
noted
that
the
then
section
443
of
the
Criminal
Code
spoke
about
"reasonable
grounds"
and
that
the
Fourth
Amendment
to
the
United
States
Constitution
is
different
from
section
8
of
the
Charter,
the
learned
judge
concluded
at
page
64:
The
sole
standard
explicitly
supplied
by
section
8
of
the
Charter
is
that
of
reasonableness.
Authority
does
not
establish
and,
in
my
view,
principle
does
not
commend
the
proposition
contended
for
by
the
petitioners
to
the
effect
that
absence
of
a
statutory
requirement
for
probable
as
well
as
reasonable
grounds
for
belief
is
constitutionally
fatal.
With
respect
to
subsection
231.3(5),
the
appellants
submit
that
a
parallel
cannot
be
drawn
between
section
489
of
the
Criminal
Code,
R.S.C.
1985,
c.
C-46
and
subsection
231.3(5)
of
the
Income
Tax
Act
in
that
the
doctrine
of
“plain
view”
is
inapplicable
to
a
situation
such
as
the
present
one
where
complex
business
documents
are
involved.
Unlike
a
case
where,
upon
entry
a
police
officer
may
see
narcotics
in
open
view,
documents
such
as
those
contemplated
by
subsection
231.3(5)
would
require
detailed
examination
by
the
authorities
to
determine
whether
they
support
a
violation
of
the
Act.
Therefore
the
subsection
provides
for
a
"wholesale
search”
of
a
citizen’s
home
which
is
a
principle
repugnant
to
the
provisions
of
sections
7
and
8
of
the
Charter.
The
common
law
rule
with
regard
to
the
“plain
view”
doctrine
is
that
where,
during
the
course
of
executing
a
legal
warrant,
an
officer
locates
anything
which
he
reasonably
believes
is
evidence
of
the
commission
of
a
crime,
he
has
the
power
to
seize
it
(Ghani
et
al.
v.
Jones
(1970),
1
Q.B.
693
(C.A.)
Lord
Denning
M.R.
at
706;
Chic
Fashions
(West
Wales)
Ltd.
v.
Jones,
[1968]
2
Q.B.
299
(C.A)
Diplock
L.J.
at
313;
Reynolds
et
al.
v.
Commissioner
of
Police
of
the
Metropolis,
[1984]
3
All
E.R.
649
(C.A.,
C.D.)
at
653,
659,
662;
R.
v.
Shea
(1982),
38
O.R.
(2d)
582;
1
C.C.C.
(3d)
at
316.
The
principle
is
known
here
and
in
the
United
States
(Texas
v.
Brown
(1983),
75
L.Ed.
(2d)
502)
.
Seizure
done
in
such
a
fashion
has
been
held
valid
by
the
following
courts:
R.
v.
Longtin
(1983),
41
O.R.
(2d)
545;
5
C.C.C.
(3d)
12
at
16
(Ont.C.A.);
R.
v.
Shea,
supra,
at
321-22
[C.C.C.]
(Ont.H.C.).
In
any
event,
the
context
in
which
the
search
for
and
seizure
of
“plain
view”
documents
appears
in
the
Act
i.e.
in
the
course
of
searching
for
and
seizing
business
documents
under
a
warrant
which
would
obviously
involve
examination
of
documents
by
the
searcher
in
order
to
determine
whether
their
seizure
is
authorized
by
that
warrant,
suggests
that
the
authority
to
seize
other
business
documents
not
covered
by
the
warrant
meets
the
test
of
reasonableness
and
therefore
of
validity.
In
addition,
the
provision
as
drafted
meets
the
constitutional
test
of
reasonableness
since
it
contains
two
important
safeguards:
namely,
that
the
executing
officer
believes
on
reasonable
grounds
that
the
document
or
thing
seized
affords
evidence
of
the
commission
of
an
offence
under
the
Act
and
that,
as
soon
as
practicable,
he
bring
the
seized
matter
before
a
judge
for
judicial
control.
The
trial
judge
came
to
the
conclusion
that
the
information
before
him
met
the
requirements
of
section
231.3
of
the
Act.
I
see
no
reason
to
disturb
his
finding
in
that
regard.
I
would
dismiss
the
appeal
with
costs.
Appeal
dismissed.
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