Wetmore, J.:—
The facts:
A search warrant was executed under the appropriate provisions of the Criminal Code upon documents inter alia of Michael Vukelich. It was based upon reasonable and probable grounds that he was involved in offences contrary to the Narcotic Control Act.
From other information set forth in the affidavit filed in support of this application, including information received from police officers who have examined the documents seized, there are valid reasons for the appropriate officers under the Income Tax Act, , R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (herein called "I.T.A.") to examine the records seized of Vukelich and his company, Americana Greenhouse Corp.
Those I.T.A. officials apply under subsection 490(15) of the Criminal Code to inspect and copy, where relevant, those documents seized as "a person who has an interest in what has been detained".
Conclusion:
This identical problem was decided by Hall, J. in the matter of an application of the M.N.R. and Szalontai (Vancouver Registry No. CC930183) on February 25, 1993. I agree with those reasons with respect and gratitude.
Additional submissions:
1. Counsel argues this application involves an application, not merely for the administrative resolution of income taxes properly exigible, but also to examine those records seized for the purpose of determining whether there has been an offence(s) under paragraph 239(1)(a) or (d) of the I.T.A., criminal tax evasions sections.
I have examined the file in the M.N.R. v. Szalontai application. That same purpose was included in that application. In reading the reasons for judgment of Hall, J. it seems apparent to me that in applying "the balance wheel” of Sopinka, J. my distinguished and careful colleague was fully aware of the purposes for which examination and copying of documents in that case were sought.
2. There does not appear to have been any application under the seizure provisions of the Code by Vukelich for the return of documents alleged to be irrelevant to the narcotics inquiry. Presumably they must pertain to that offence as well.
The argument is made that because there is no search warrant for I.T.A. offences, or presumably any other offences except narcotics, these items cannot be seized for those other purposes without the additional warrant.
That, of course, is not the application here, it is merely to inspect and copy the documents.
Section 8 of the Charter grants the" right to be secure against unreasonable search and seizure”. Those words alone and combined with section 7, according to the Supreme Court of Canada, are based on notions of privacy to the individual. The argument then proceeds that I should refuse this motion and require the M.N.R. to obtain its own warrant.
That warrant would probably be likewise attacked on the basis of reasonable grounds for its issuance coming from the information obtained by virtue of the earlier one, which, it would be argued, was wrongly given to the M.N.R. by other officers of the state, the R.C.M.P.
These arguments at this point are purely academic.
(a) There is no charge of tax evasion now.
(b) The remedy for a Charter breach may be the quashing of a search warrant, but only after due consideration of subsection 24(2) of the Charter and the balance wheel of public versus private security and safety.
(c) Subsection 490(15) is not challenged, nor should it be, in this application. All that Parliament has decreed is that a party who has "an interest" may examine the documents. Whether that examination results in evidence sought to be adduced at trial will have to await the Court's determination of its admissibility. All of that is speculative and totally dependent on whether evidence even exists to show reasonable and probable grounds for a charge.
See R. v. Horth and Quinn, August 28, 1992, Vancouver Registry No. CC920975 and R. v. Wittrup, [1993] B.C.W.L.D. 1108, February 24, 1993, (S.C.) Vancouver Registry No. CC911246, as examples of premature applications.
Application allowed.