Meredith, J.:—The petitioner seeks an order to quash a search warrant and for the return of documents seized thereunder. The warrant was issued and the documents seized upon information that the search would provide evidence that a person attempted to commit the offence of obstruction of justice through falsely stating the income of a company. I conclude that the Justice of the Peace, in issuing the search warrant, violated the express provisions of the Income Tax Act and thus was without jurisdiction. Thus the warrant must be quashed and the documents returned.
The Income Tax Act, section 241 contains the following prohibition:
241. (1) Except as authorized by this section, no official or authorized person shall
(a) knowingly communicate or knowingly allow to be communicated to any person any information obtained by or on behalf of the Minister for the purposes of this act . . . ,
(b) knowingly allow any person to inspect or to have access to any book, record, writing, return or other document obtained by or on behalf of the Minister for the purposes of this Act . . . .
Thus an “official” or an “authorized person" cannot knowingly allow the person named in the search warrant to have access to the books, records, writings, or other documents obtained by or on behalf of the Minister for the purposes of the Income Tax Act.
Subsection 241(3) provides for one important exception to the restriction to communication, inspection, and access as follows:
(3) Subsections (1) . . . do not apply in respect of criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information, under an act of the Parliament of Canada,. . ..
Thus a person in the Department may be justified in turning over documents pursuant to a search warrant after a criminal charge has been laid but not before. No charge had been laid in this case.
The first point taken by the respondents is that subsection 241(3) is merely a prohibition directed to employees of the Department, not to others who may by some means become privy to the material in the hands of the Department. But others could only legally have access to the material with the help of a person in the Department. No doubt personnel in the Department, although conditionally, assisted the police in this case. But Parliament has decreed that in the public interest the material be held confidential. It seems to me it would be difficult to devise language better suited to the purpose.
The respondents also contend, I think, that the documents are before the Court, and that the Court should decide under section 36.1 of the Canada Evidence Act the question whether the public interest would best be served by disclosure. It is true that in Attorney General for Canada v. Belanger, cited for the respondents, (I do not have the citation) Rothman, J.A. of the Court of Appeal of Quebec said that the Canada Evidence Act, section 36.1 sets out "the present law and procedure applicable where a Minister of the Crown in the right of Canada, or other interested person, wishes to object to the disclosure of privileged information before a Court". Shortly thereafter he said: “In these provisions, I believe that Parliament has abandoned any claim to absolute privilege on the part of the Crown in the right of Canada,. . .".
As to the first statement. The Crown in this case not only wishes but is required by Parliament to take the position it does. In any case, it is highly doubtful that the information is before this Court.
The second statement is obiter. I do not fully understand the reasoning for the conclusion, or for that matter its meaning. In any case, surely the section of the Canada Evidence Act in question cannot be taken to nullify the clear provisions of the Income Tax Act.
The orders will go.
Order accordingly.