Reed,
J.:—This
is
an
application
by
the
Minister
of
National
Revenue
for
a
retention
order
pursuant
to
subsection
231.3(6)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
as
amended.
Sections
231
to
231.5
were
added
to
the
Income
Tax
Act
by
Stats.
Can.
1986,
c.
6,
s.
121.
They
replaced
an
earlier
section
231,
parts
of
which,
as
is
well
known,
had
been
declared
invalid
by
virtue
of
section
8
of
the
Canadian
Charter
of
Rights
and
Freedoms:
Everyone
has
the
right
to
be
secure
against
unreasonable
search
and
seizure.
Counsel
informs
me
that
this
is
the
first
such
application
in
this
Court.
Section
231.3
provides:
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.
(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.
A
warrant
was
issued
pursuant
to
subsection
231.3(1)
by
Mr.
Justice
Teitelbaum
on
April
10,
1986.
The
order
granting
such
warrant
required
that
a
report,
in
respect
to
documents
or
the
things
seized,
as
required
by
subsections
231.3(1)
and
(5),
was
to
be
made
to
this
Court
on
May
6,
1986.
The
Minister
makes
that
report
and
seeks
contemporaneously
a
retention
order
pursuant
to
subsection
231.3(6).
The
documents
which
it
is
sought
to
retain
were
obtained
from
the
possession
of
a
member
of
the
Ottawa
Police
Force
from
the
basement
of
the
Ottawa
Police
Station.
They
had
initially
been
seized
by
the
Ottawa
Police
in
the
course
of
an
investigation
of
the
taxpayer's
“escort
services"
businesses.
They
were
seized
under
a
warrant
(what
I
will
call
the
initial
warrant)
which
issued
from
the
Ontario
Supreme
Court.
Counsel
for
the
taxpayer
contends
that
the
initial
warrant
was
an
unreasonable
search
and
invalid
by
reason
of
section
8
of
the
Charter.
This
it
is
argued
follows
from
a
number
of
reasons
among
them
being
the
fact
that
the
warrant
was
not
specific
but
allowed
“‘a
blanket
search."
Counsel
states
that
he
will
challenge
the
validity
of
that
warrant
but
must
do
so
in
the
Ontario
courts.
Consequently
he
asks
that
this
Court
issue
a
conditional
order
under
subsection
231.3(6),
or
other
comparable
relief,
until
the
validity
of
the
initial
warrant
has
been
determined.
The
conditions
sought
are
that
the
order
be
temporary
only
(for
a
60-day
period)
and
that
the
Minister
be
obliged
not
to
use
the
documents
for
the
purpose
of
furthering
any
investigations
against
the
taxpayer
until
the
validity
of
the
seizure
is
determined.
Counsel
for
the
Minister
argues
that
the
Court
has
no
jurisdiction
to
grant
a
conditional
order
pursuant
to
subsection
231.3(6)
since
the
terms
of
that
subsection
state
that
the
Court
"shall"
issue
a
retention
order
when
the
conditions
set
out
in
subsection
231.3(7)
are
met.
I
do
not
consider
it
necessary
to
determine
this
issue
of
interpretation
since
it
is
clearly
open
to
the
Court,
in
any
event,
to
order
an
adjournment,
pursuant
to
Rule
323
of
the
Federal
Court
Rules,
and
thus
give
time
for
the
validity
of
the
initial
warrant
to
be
raised
in
the
Ontario
courts.
I
note,
in
addition,
that
if
counsel
for
the
taxpayer
were
to
be
successful
in
his
contention
that
the
warrant
from
this
Court
is
invalid
because
it
is
based
on
an
invalid
warrant
from
the
Ontario
courts
then
the
condition
set
out
in
paragraph
(b)
of
subsection
231.3(7)
would
not
have
been
met.
That
is,
the
documents
would
not
have
been
seized
in
accordance
with
the
section.
The
main
issue
between
the
Minister
and
the
taxpayer,
however,
is
the
use
in
the
interim
of
the
documents
now
in
the
possession
of
the
Minister.
Counsel
for
the
taxpayer
seeks
an
order
requiring
that
they
not
be
used
for
the
purposes
of
furthering
any
investigation
against
his
client
until
the
validity
of
their
seizure
is
determined.
He
argues
that
not
to
issue
such
an
order
would
effectively
render
a
successful
constitutional
challenge
to
the
legality
of
the
seizure
meaningless
and
nugatory.
Counsel
for
the
Minister
argues
that
there
is
no
jurisdiction
to
grant
such
an
order.
I
note
that
there
was
no
argument
that
a
temporary
limitation
on
the
use
of
the
documents
would
impair
as
opposed
to
delay
only
the
investigations
being
undertaken
by
the
Minister.
There
is
no
doubt
that
counsel
for
the
taxpayer
has
some
difficult
arguments
to
make
to
ultimately
succeed
in
his
attempt
to
keep
the
documents
from
eventually
being
used
by
the
Minister.
It
is
not
clear
to
me
that
the
Ontario
courts
will
necessarily
consider
the
validity
of
the
initial
warrant
anything
other
than
a
moot
issue
—
the
taxpayer
apparently
pleaded
guilty
to
the
charges
filed
against
him
to
which
the
documents
relate.
It
is
not
immediately
obvious
to
me
that
even
if
the
warrant
of
the
Ontario
Court
is
invalid
that
that
would
render
the
subsequent
warrant
of
this
Court
invalid.
Lastly
it
is
not
clear
to
me
why,
even
if
both
warrants
were
invalid,
the
Minister
could
not,
immediately
on
release
of
the
documents
to
the
taxpayer,
seek
and
obtain
a
new
and
valid
warrant
retaking
possession
of
the
documents.
In
any
event,
since
the
issues
of
the
validity
of
this
Court's
warrant
independently
of
the
validity
of
the
initial
warrant
was
not
the
subject
of
any
substantial
argument
before
me
I
propose
to
decide
this
application
without
reference
to
that
aspect.
The
issue
I
was
asked
to
decide
was
that
of
a
conditional
or
unconditional
retention
order.
In
this
regard,
the
interpretation
of
section
231.3
of
the
Income
Tax
Act
need
not
be
considered.
Rule
323
of
the
Federal
Court
Rules
allows
the
Court
to
adjourn
any
motion
upon
such
terms
and
conditions
as
it
seems
just:
The
hearing
of
any
motion
may
from
time
to
time
be
adjourned
upon
such
terms,
if
any,
as
seem
just.
While
I
am
rather
skeptical
about
the
taxpayer’s
ultimate
chance
of
success
in
the
result
sought
to
be
obtained
nevertheless
given
the
fact
that
there
is
no
evidence
that
60
days
delay
will
create
any
prejudice
for
the
Minister,
—
an
adjournment
will
be
ordered
for
a
60-day
period,
pursuant
to
Rule
323
and
a
term
of
that
order
will
require
the
Minister
not
to
use
the
documents
or
any
copies
of
them
for
the
purposes
of
investigation,
until
the
expiration
of
that
time
unless
counsel
for
the
taxpayer
or
the
taxpayer
earlier
indicates
that
a
challenge
to
the
validity
of
the
seizure
is
abandoned.
ORDER
THIS
COURT
DOTH
ORDER
THAT
the
hearing
of
this
motion
be
adjourned
until
July
15,
1986
at
10:00
in
the
forenoon,
to
be
heard
at
that
time
by
any
member
of
this
Court,
unless
heard
at
an
earlier
date
or
unless
counsel
for
the
taxpayer
sooner
indicates
an
intention
to
abandon
the
challenge
to
the
validity
of
the
warrant;
AND
with
leave
to
the
Minister
of
National
Revenue
to
seek
to
have
the
matter
brought
on
sooner
if
the
proceedings
before
the
Ontario
courts
referred
to
in
the
reasons
for
order
are
not
pursued
with
dispatch;
AND
until
final
disposition
of
this
application
all
documents
to
which
the
reasons
given
for
this
order
relate
and
all
copies
thereof
shall
be
retained
by
the
Minister
of
National
Revenue
and
sealed
or
otherwise
kept
in
such
a
fashion
that
they
are
not
examined
or
used
for
any
purposes
of
investigation;
AND
with
leave
to
the
Minister
of
National
Revenue
to
seek
before
any
member
of
this
Court
amendment
of
the
condition
respecting
the
restricted
use
of
the
documents
on
the
ground
of
prejudice,
should
such
exist
or
arise.
Order
accordingly.
Email this Content