Halvorson
J.:
—
The
applicants
seek
relief
from
the
continued
detention
of
their
financial
records
by
the
Minister
of
National
Revenue.
On
June
27,
1995,
the
Minister
seized
all
the
applicants’
records
pursuant
to
a
search
warrant.
The
records
were
detained
by
subsequent
orders
under
Criminal
Code,
subsection
490(1)
made
on
September
11
and
December
8.
As
the
one-year
limit
to
detention
was
approaching,
the
Minister
applied
to
this
Court
on
March
26,
1996
for
a
continuance
under
subsection
490(3)(A).
By
fiat
dated
April
9,
1996,
Laing
J.
Refused
to
continue
the
detention
beyond
the
one
year,
to
expire
June
26,
the
Minister
achieved
further
detention
under
Code
subsection
490(3)(B)
and
section
490,
without
the
necessity
of
court
approval,
by
laying
criminal
charges
against
the
applicants.
The
applicants
cry
foul,
and
for
good
reason.
It
is
evident
from
the
court
file
that
the
applicants
are
suffering
severe
prejudice
in
the
operation
of
their
farm
implement
dealership,
without
business
records.
This
was
recognized
by
Laing
J.
In
his
fiat,
and
as
well,
by
the
Provincial
Court
judges,
who
granted
the
limited
extensions
on
September
11
and
December
8.
Now,
by
commencing
a
prosecution,
the
Minister
can
seemingly,
retain
the
seized
documents
indefinitely.
In
this
respect,
subsection
490(3)(B)
and
subsection
490(9)
provide:
490(3)
More
than
one
order
for
further
detention
may
be
made
under
paragraph
(2)(a)
but
the
cumulative
period
of
detention
shall
not
exceed
one
year
from
the
day
of
the
seizure
unless
before
the
expiration
of
that
year,
(b)
proceedings
are
instituted
in
which
the
thing
detained
may
be
required.
490(9)
Subject
to
this
or
any
other
Act
of
Parliament,
if
(a)
a
judge
referred
to
in
subsection
(7),
where
a
judge
ordered
the
detention
of
anything
seized
under
subsection
(3),
or
(b)
a
justice,
in
other
case
is
satisfied
that
the
periods
of
detention
provided
for
or
ordered
under
subsections
(1)
to
(3)
in
respect
of
anything
seized
have
expired
and
proceedings
have
not
been
instituted
in
which
the
thing
detained
may
be
required
or,
where
such
periods
have
not
expired,
that
the
continued
detention
of
the
thing
seized
will
not
be
required
for
any
purpose
mentioned
in
subsection
(1)
or
(4),
he
shall
(c)
if
possession
of
it
by
the
person
from
whom
it
was
seized
is
lawful,
order
it
to
be
returned
to
that
person;
or
(d)
if
possession
of
it
by
the
person
from
whom
it
was
seized
is
unlawful
and
the
lawful
owner
or
person
who
is
lawfully
entitled
to
its
possession
is
known,
order
it
to
be
returned
to
the
lawful
owner
or
to
the
person
who
is
lawfully
entitled
to
its
possession,
and
he
may,
if
possession
of
it
by
the
person
from
whom
it
was
seized
is
unlawful
and
the
lawful
owner
or
person
who
is
lawfully
entitled
to
its
possession
is
not
known,
order
it
to
be
forfeited
to
Her
Majesty,
to
be
disposed
of
as
the
Attorney
General
directs,
or
otherwise
dealt
with
in
accordance
with
the
law.
[Emphasis
added.
]
To
the
applicants,
the
swearing
of
the
information
on
behalf
of
the
Minister
is
merely
a
device
to
circumvent
the
order
of
Laing
J.
And
maintain
possession
of
the
documents.
If
this
were
so,
the
words
“perjury”
and
“malicious
prosecution”
come
to
mind.
It
is
noteworthy
that
the
investigation
of
the
applicants
by
the
Minister
centered
largely
on
questionable
investment
tax
credits.
Apparently,
dates
of
delivery
of
equipment
were
a
critical
issue.
Some
time
a
ago,
counsel
for
the
applicants
proposed
that
a
point
of
law
on
this
issue
be
placed
before
this
Court
for
determination.
The
file
does
not
disclose
a
response
from
the
Minister.
If
it
transpires
during
the
course
of
prosecution
that
counsel
is
correct,
and
the
problem
is
essentially
a
civil
dispute
lacking
a
criminal
intent,
the
Minister
may
anticipate
a
punitive
order
of
solicitorclient
costs.
The
Minister
has
complained
to
the
courts
on
three
occasions
that
he
needs
more
time
to
assess
the
seized
material
because
of
the
volume.
Laing
J.
Was
not
impressed.
Obviously,
with
the
resources
of
Canada,
the
Minister
could
have
assigned
more
employees
to
this
project.
If
he
failed
to
do
so,
it
is
not
for
the
applicants
to
bear
the
consequences.
Before
me
there
is
a
motion
by
the
applicants
for
an
order
under
subsection
490(7)
directing
the
Minister
to
return
the
sized
records.
This
motion
was
launched
following
the
expiration
of
the
one-year
limit
ending
June
26,
but
before
the
applicants
were
aware
of
the
charges
laid
that
same
day.
Counsel
for
the
Minister
cites
the
decision
in
R.
v.
Church
of
Scientology
of
Toronto
(1991),
63
C.C.C.
(3d)
328,
49
O.A.C.
13
in
support
of
his
argument
that
the
institution
of
the
prosecution
forecloses
the
applicant’s
right
to
recover
the
documents.
Considering
all
these
circumstances,
the
Court
should
aim
to
accommodate
the
needs
of
each
faction
to
the
extent
possible.
The
Minister
should
be
hampered
in
his
prosecution.
As
well,
the
applicants
should
not
be
unduly
prejudiced
in
the
operation
of
their
business
over
the
next
few
years
while
the
case
progresses
through
the
system.
These
aims
are
attainable.
Code
subsections
490(13)
and
(14)
contemplate
this
very
situation
by
allowing
the
Minister
to
copy
the
documentation
and
use
these
copies
in
court.
The
sections
read:
(13)
Where
any
document
is
returned
or
ordered
to
be
returned,
forfeited
or
otherwise
dealt
with
under
subsection
(1),
(9)
or
(11),
the
Attorney
General
may,
before
returning
the
document
or
complying
with
the
order,
make
or
cause
to
be
made,
and
may
retain,
a
copy
of
the
document.
(14)
Every
copy
made
under
subsection
(13)
shall,
if
certified
as
a
true
copy
by
the
Attorney
General,
be
admissible
in
evidence
and,
in
the
absence
of
evidence
to
the
contrary,
shall
have
the
same
probative
force
as
the
original
document
would
have
if
it
had
been
proved
in
the
ordinary
way.
[Emphasis
added.]
In
the
past,
the
Minister
has
acceded
to
the
applicants’
request
for
copies
of
the
seized
materials,
but
that
which
was
supplied
has
proven
unhelpful
due
to
the
lack
of
correlation.
Apart
from
inconvenience,
there
is
no
reason
why
the
Minister
should
not
make
his
own
copies
of
the
records
and
return
the
originals
to
the
applicants.
This
will
be
a
timeconsuming
exercise,
but
it
is
the
price
to
be
paid
to
meet
the
needs
of
both
sides.
There
will
be
an
order
directing
the
Minister
to
return
the
original
seized
documents
to
the
applicants
before
August
31,
1996.
In
the
meantime,
with
all
his
resources,
the
Minister
can
reproduce
copies
for
himself.
Application
allowed.
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