Lysyk, J.:—The petitioners seek an order quashing a warrant to enter and search issued by McEachern, C.J. on February 27, 1987 pursuant to section 231.3 of the Income Tax Act, S.C. 1970-71-72, c. 63, as amended ("the Act”). The warrant was executed on March 2, 1987. The present application initially came before McKenzie, J., who considered all of the grounds relied upon by the petitioners except their challenge to the constitutional validity of section 231.3 of the Act based on alleged inconsistency with certain provisions of the Canadian Charter of Rights and Freedoms ("the Charter"). The reasons of McKenzie, J. are now reported: 15 B.C.L.R. (2d) 200. He concluded as follows (at pp. 223-4):
This petition insofar as it is based on non-constitutional and non-Charter argument fails. By agreement with counsel, the constitutional and Charter arguments, including any arguments relating to the vires of any sections of the Income Tax Act, are reserved for another day. I see no absolute necessity for me to hear those arguments as they are separate arguments but, if counsel would prefer to avoid the necessity of educating another judge concerning the facts, I have no objection to hearing them out, but I do not bind myself to the task nor do I consider myself seized of that aspect of the petition.
Any consideration of costs will be deferred until the ultimate outcome is known or until further order.
McKenzie, J. was not available when this matter came on for hearing of the constitutional argument. The parties, through their solicitors, agreed that I had jurisdiction to deal with these remaining issues.
The impugned legislation and the issues
The facts and litigation history are fully reviewed in the reasons delivered by McKenzie, J. The section of the Act containing the impugned provisions reads as follows:
231.3 (3) 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) An application under subsection (1) shall be supported by information on oath establishing the facts on which the application is based.
(3) 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) 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) 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) 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) 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 action.
(8) 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.
In overview, section 231.3 provides for seizure of documents or things following issuance of a warrant by a judge pursuant to subsection (1). The section deals with two kinds of seiure, those under subsection (1) and those under subsection (5). The former type of seizure, which I will for convenience sometimes refer to as “primary”, involves seizure of the documents or things which are described in the warrant, which description is required by the terms of subsection (4) to be "reasonably specific". The other type of seizure, which is provided for by subsection (5) and which I will sometimes refer to as "secondary", involves seizure of documents or 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.”
The petitioners challenge the validity of the provisions dealing with both primary and secondary forms of seizure, that is to say, subsections (1) to (4) dealing with seizure under warrant and subsection (5) dealing with seizure of additional items in conjunction with execution of a warrant. Subsections
(6) and (7) are challenged only in so far as they make reference to and depend upon (in the sense of not being severable from) the foregoing provisions. Subsection (8) is not impugned.
The material filed by the petitioners challenges the validity of these enactments on the basis of inconsistency with three provisions of the Charter: sections 7, 8 and 15. However, counsel for the petitioners did not advance a separate oral submission relating to section 7 of the Charter, which reads as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In the notes of argument he supplied to the court, counsel for the petitioners limited his treatment of section 7 to quotations from the principal judgment, delivered by Lamer, J., in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. Those extracts (from pp. 501-503 and 512) are particularly instructive on the relationship between legal rights guaranteed by the terms of section 7 and legal rights guaranteed by sections 8-14 and also on the scope and content of the words “principles of fundamental justice" in section 7. But the role of section 7 in the circumstances of the present application was not elucidated and is not self-evident. In so far as legal rights are concerned, it is clear that the thrust of the petitioners' case rests on the section 8 guarantee of the right to be secure against unreasonable search or seizure. In the absence of argument based on principle or authority clearly on point, I find no basis for the suggestion that section 7 imposes separate and distinct constitutional requirements, additional to those inherent in section 8, against which the impugned enactments are to be tested. I turn, therefore, to the petitioners' arguments relating to the legal right guaranteed by section 8 and the equality rights guaranteed by section 15.
Unreasonable search or seizure
Section 8 of the Charter reads as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
The constitutional question raised by the express terms of the clause is whether the provisions of section 231.3 of the Act provide a mandate for unreasonable searches or seizures. For guidelines as to what is reasonable and what is not in this context it is necessary to turn to the case law.
The leading authority on the section 8 requirement of reasonableness is Hunter v. Southam Inc., [1984] 2 S.C.R. 145; 84 D.T.C. 6467. There, search and seizure provisions contained in subsections 10(1) and (3) of the Combines Investigation Act, R.S.C. 1970, c. C-23 were struck down as falling short of the minimum constitutional standards imposed by section 8 in two respects. First, there was no provision for prior authorization by a neutral arbiter. Second, the criteria for issuing an authorization for entry, search and seizure failed to provide an adequate standard against which to test an applicant's grounds for belief that an offence had been committed and that evidence was to be found at the place of search.
The analysis in Hunter v. Southam was applied in three appellate court decisions where challenges were successfully made to the constitutional validity of the search and seizure provisions of the Act which were the predecessors of those impugned on the present application. Prior to their replacement by the provisions now under review, the Act provided for Ministerial authorizations with the approval of a judge pursuant to subsections 231(4) and (5), which read as follows:
(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 establishing the facts upon which the application is based.
In M.N.R. v. Kruger, [1984] C.T.C. 506; 84 D.T.C. 6478 (F.C.A.), subsection 231(4) was held to contravene section 8 of the Charter in that it conferred upon the Minister, when he believed one particular offence had 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. Kruger was followed in another decision of the Federal Court of Appeal issued on the same day — Vespoli v. The Queen, [1984] C.T.C. 519; 84 D.T.C. 6489 — and applied in The Queen v. Print Three Inc., [1985] 2 C.T.C. 48; 85 D.T.C. 5303 (Ont. C.A.), where the following additional reasons were supplied for concluding that subsection 231(4) violated section 8 of the Charter (at p. 50; D.T.C. 5305):
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 section 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.
Following these decisions the Act was amended to replace subsection 231(4) by the provisions challenged on the present application. The new section 231.3, which came into force on February 13, 1986, has survived two constitutional challenges at the trial level. In Kohli v. Moase (Dec. 17, 1987), unreported (N.B.Q.B.), Higgins, J. observed that section 231.3 appeared to respond directly to the concerns expressed in Hunter v. Southam Inc., supra, and met the minimum standards set by that decision (p. 23). Similarly, in Solvent Petroleum Extraction Inc., et al. v. M.N.R., [1988] 1 C.T.C. 325: 88 D.T.C. 6224, Dubé, J. reviewed the Print Three decision, outlined the grounds there set out for holding the former subsection 231(4) of the Act to be in contravention of section 8 of the Charter, and concluded (at pp. 330; D.T.C. 6228) that section 231.3 was designed to remedy and did remedy the defects identified in the latter decision.
With respect to what I have termed primary seizures, that is, seizures pursuant to the terms of a warrant issued under subsection (1), I agree with the conclusions reached in the Kohli and Solvent Petroleum decisions and, with one exception, do not find it necessary to go beyond the reasons there provided. The exception relates to an argument advanced by Mr. Du Pont on behalf of the petitioners on a point not canvassed in either of those two decisions. He pointed out that in relation to primary seizures subsection (3) requires the issuing judge to be satisfied that there are “reasonable grounds to believe” the three things specified in paragraphs (a), (b) and (c) and similarly, in relation to secondary seizures, subsection (5) provides that the person executing a warrant may seize additional documents or things if he "believes on reasonable grounds" that evidence of commission of an offence will thereby be afforded. These provisions, he argued, do not provide a standard high enough to meet the constitutional requirements of section 8 of the Charter. What is necessary, in his submission, is belief based on reasonable and probable grounds.
Mr. Du Pont points out that the former subsection 231(4) of the Act required the Minister to have "reasonable and probable grounds to believe” that an offence had been or was likely to be committed. In this respect, he argues, the new section 231.3 represents a constitutionally unacceptable "watering down" of the minimum standard. For the respondents, Mr. McKinnon argues that the demands of section 8 of the Charter are fully satisfied with the demonstration of "reasonable" grounds for belief. He points out that the search warrant provisions contained in section 443 of the Criminal Code are similar to the impugned provisions of the Act in this respect. Subsection 443(1) speaks in terms of the issuing justice being satisfied by information upon oath that there is "reasonable ground to believe” the matters therein specified.
The only Canadian authority cited by counsel relating to the relevant objective standard is the following passage from the judgment in Hunter v. Southam Inc., supra, at S.C.R. 167-8; D.T.C. 64-77:
The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.
[Emphasis in original]
Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave "strong reasons to believe" that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is "reasonable ground to believe" that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . ." The phrasing is slightly different but the standard in each of these formulations is identical. The state's interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one. That is not the situation in the present case. 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. In so far as subss. 10(1) and 10(3) of the Combines Investigation Act do not embody such a requirement, I would hold them to be further inconsistent with s. 8.
[Emphasis mine.]
Both counsel found comfort in the second paragraph of the above quoted passage. Mr. Du Pont points to the second emphasized passage where reference is made to "reasonable and probable grounds." Mr. McKinnon naturally prefers the first emphasized passage where, having noted the different phrasings employed at common law, in section 443 of the Criminal Code, and in the American Bill of Rights, it is concluded that "the standard in each of these formulations is identical". Most significantly, the passage does not appear to cast doubt upon the formulation in section 443 of the Code, which is indistinguishable in that respect from the enactments presently under review. In Re Times Square Book Shop and The Queen (1985), 21 C.C.C. (3d) 503 (Ont. C.A.), Cory, J.A., delivering the judgment of the court, stated (at p. 507): "In light of the decision of the Supreme Court of Canada in Hunter et al. v. Southam Inc. [citations omitted] there can be no doubt that s. 443 of the Code complies with the requirements set out in s. 8 of the Charter." Like the Kohli and Solvent Petroleum decisions relating to section 231.3 of the Act, however, the Times Square decision did not address the point presently under consideration.
In his able submissions on this point counsel for the petitioners placed much reliance on the jurisprudence relating to the United States Bill of Rights and, specifically, the Fourth Amendment, which reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.
While the Charter, in section 8, provides a corresponding right to be secure against "unreasonable" search or seizure, it contains no counterpart to the Fourth Amendment's second clause, which deals expressly with the issuance of warrants.
Given the Fourth Amendment's express prohibition on the issuance of warrants except upon “probable cause”, it is not surprising that those words figure importantly in the extensive American jurisprudence on search and seizure. Yet the scope of the expression "probable cause" remains unclear: see, e.g., Wasserstrom, "The Incredible Shrinking Fourth Amendment" (1984) 21 American Crim. L. rev. 257, at p. 305, where the author comments: “In view of the centrality of the probable cause requirement to both the theory and practice of fourth amendment law, it is perhaps surprising that the Supreme Court has never tried to explain its precise meaning." The second clause of the Fourth Amendment has coloured the development of the American doctrine to an extent which renders it hazardous and perhaps undesirable to place undue reliance upon it in construing section 8 of the Charter. In R v. Rao (1984), 46 O.R. (2d) 80; 40 C.R. (3d) 1 (Ont. C.A.) Martin, J.A., delivering the judgment of the court, made these observations (at page 29 [106 O.R.]):
. . .[T]he omission from s. 8 of the Charter of a warrant provision similar to that contained in the second clause of the Fourth Amendment signals caution in the extent of the use of the American jurisprudence under the Fourth Amendment. There is an additional reason for the exercise of caution in the use of American jurisprudence. The case law under the Fourth Amendment is replete with refined distinctions which, in my view, ought to be avoided in developing our jurisprudence under s. 8 of the Charter. Moreover, the decisions under the Fourth Amendment are not always clear or consistent, and it is evident that some American commentators consider that the state of the jurisprudence on the Fourth Amendment is far from satisfactory: . . .
To the same effect, see Re Times Square Book Store and The Queen, supra, at page 509 et seq. In my view, the proposition for which Mr. Du Pont contends, whether or not supportable in American jurisprudence, is the kind of "refined distinction” (to borrow the language of Martin, J.A.) which ought not to be adopted without a clear understanding of its import. In what sort of circumstances, it may be asked, would a judge to whom an application for a warrant is made be apt to find that the grounds for belief were to his satisfaction "reasonable" but not "probable" The American authorities are considered in the Canada Law Reform Commission's working paper 30 entitled Police Powers: Search and Seizure in Criminal Law Enforcement (1983) and in its Report on Search and Seizure (1984). It is noteworthy that the standard proposed by the Commission throughout is simply that of belief on “reasonable” grounds.
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.
I turn next to the petitioners' attack on subsection (5) of section 231.3, with its provision for what I have termed secondary seizures. Like section 445 of the Criminal Code, subsection 231.3 (5) provides that a person executing a warrant may seize certain items in addition to those mentioned in the warrant. However, the objects of such seizure differ. Section 445 of the Code provides for seizure of such additional things as are believed on reasonable grounds to have been obtained by or used in the commission of an offence. Subsection 231.3 (5) of the Act provides for seizure of such additional documents or things as are believed on reasonable grounds to afford evidence of the commission of an offence under the Act. Unlike the Code provision, therefore, subsection 231.3 (5) of the Act authorizes the seizure of items of a purely evidentiary nature. The constitutional question is whether this legislative mandate to seize such additional documents and things believed to afford evidence of an offence is inconsistent with the Charter's section 8 guarantee of security against unreasonable search and seizure. Counsel for the petitioners again relies heavily on the American jurisprudence and, in particular, on the authorities relating to the scope of the so- called “plain view" doctrine.
For purposes of the present application, I find it unnecessary to rule upon the constitutional validity of subsection (5) of section 231.3. That is so for the following reasons. The respondents' position, clearly and forcefully expressed by Mr. McKinnon, is that nothing was seized by way of a secondary seizure pursuant to subsection (5). The respondents say that all of the documents taken were the subject of the primary seizure effected under subsection (1) and pursuant to the requirements of subsections (2) to (4). Mr. McKinnon points to passages in the reasons of McKenzie, J. (at B.C.L.R. 214 and 216) to the effect that a careful reading of the material filed on the application for the warrant disclosed "the whole story" and that any problem was merely compositional in nature. Nothing in McKenzie, J.'s reasons indicates reliance on subsection (5) powers of secondary seizure. Mr. McKinnon points out that if subsection (5) were relied upon by the respondents they would have been obliged under the terms of that subsection to bring documents seized pursuant to it to the attention of, or to make a postseizure report in respect thereof to, the issuing judge or another judge of this court. There is nothing before me, he argues, to disclose reliance upon subsection (5) or to support the consequent inference that the respondents have ignored the post-seizure requirements imposed by that subsection.
I accept the respondents' submission on this point. The factual basis for engaging subsection (5) has not been made out on this application and the constitutional question ought not to be ruled upon in the abstract. The validity of subsection (5) would be properly in issue if, but only if, a finding that it was ultra vires would place in jeopardy the validity of the provisions of section 231.3 relating to primary seizures. The question raised relates to severability. The classic test for severance, recently reaffirmed by Wilson, J. in Edwards Books and Art Limited v. The Queen, [1986] 2 S.C.R. 713 at 811, is set out in Attorney General for Alberta v. Attorney General for Canada (Reference re Alberta Bill of Rights), [1947] A.C. 503 p. 518:
The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.
Although it is the case that subsections (6) and (7) refer to seizures both under subsection (1) and subsection (5), the provisions of the impugned enactment relating to primary seizures cannot be said to be so intertwined with those relating to secondary seizures under subsection (5) so as to preclude severance of the latter should it be found ultra vires. I believe it can safely be assumed that Parliament would have enacted section 231.3 without subsection (5).
Accordingly, the petitioners' challenge to the validity of the legislation, in so far as it is based on section 8 of the Charter, fails.
Equality rights
The petitioners say that the impugned legislation violates equality rights guaranteed by subsection 15 (1) of the Charter, which reads as follows:
15.-(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
There are two branches to the submission advanced on behalf of the petitioners based on section 15. The first is that the rights of appeal of taxpayers in respect of issuance of warrants under the impugned enactments are not, or may not be, uniform in all of the provinces. Mr. Du Pont's point of departure for this submission is Goodman v. Rompkey, [1982] 1 S.C.R. 589, [1982] C.T.C. 192, which held that no appeal lay to the Quebec Court of Appeal from an approval given by a Superior Court judge to an authorization to enter and seize pursuant to former subsection 231 (4) of the Act. Mr. Du Pont's submission, as I understood it, was that the same result can be expected now with respect to issuance of a warrant by a judge of the Quebec Superior Court pursuant to the present section 231.3. In his submission, however, there is some support in the authorities for the existence of a right to appeal in analogous circumstances in other provinces. The alleged inequality, that is to say, is geographic in nature. For present purposes I will assume, without stopping to review the cases relied upon by Mr. Du Pont, that the rights of appeal with respect to section 231.3 are not entirely uniform across Canada. If that is so, and even if one makes the further (large) assumption that the differences in question are capable of constituting “discrimination” within the meaning of subsection 15 (1) of the Charter, any such inequality in rights of appeal does not flow from the provisions of the impugned legislation itself. Accordingly, striking down the challenged enactment would not be an appropriate response to the problem. Other forms of relief to eliminate the alleged disparity in treatment were not proposed and consideration of them at this stage would be premature.
The second branch of Mr. Du Pont's submission is based on different appeal options available depending on whether a warrant is sought from a judge pursuant to the impugned enactment or, alternatively, from a justice pursuant to section 443 of the Criminal Code. His starting point for this argument is the decision in Re Multiform Manufacturing Co. Ltd. and the Queen (1987), 33 C.C.C. (3d) 521 (Que. Sup. Ct.), where it was held that a search warrant may be obtained under subsection 443 (1) of the Criminal Code for purposes of enforcement of other federal statutes, including those which contain their own provisions for search and seizure. The other federal statute there under consideration was the Bankruptcy Act. Mr. Du Pont argues that subsection 15 (1) of the Charter is violated in the present context because the possibilities for review and appeal of the issuance of a search warrant differ depending on whether enforcement officials elect to seek a warrant under subsection 443 (1) of the Code or, alternatively, under section 231.3 of the Act. The first observation I would make is that in the Multiform decision itself the court considered and rejected a submission to the effect that differences between the search warrant provisions of the two federal enactments gave rise to “discrimination” within the meaning of section 15 of the Charter (at pp. 532-4). I agree with that conclusion. If such differences did give rise to discrimination in the relevant sense, it would be necessary again to consider the appropriateness of seeking to cure the problem by striking down one (or both?) of the enactments.
The petitioner's submission based on section 15 of the Charter is rejected.
Conclusion
The challenge to the constitutional validity of section 231.3 of the Act fails. All other issues having been determined adversely to the petitioners by McKenzie, J., the application is dismissed. On the basis that this was in the nature of a criminal proceeding the respondents did not seek costs and none are ordered.
Application dismissed.