Hartt, J:—This is an application by the defence under subsection 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding the introduction into evidence in these proceedings of any materials seized during the course of two search and seizure actions carried out by officers of the Department of National Revenue on May 13, 1975 and March 1, 1977. In the alternative, the defendants apply under subsection 24(1), (or if necessary, under the common law) for an order directing the return to the defendants of all the materials so seized together with all copies thereof and any notes précis or other description of the material taken or seized.
The documents in issue were seized prior to the enactment of the Charter pursuant to authorizations under subsection 231(4) of Income Tax Act SC 1970-71-72 c 63. It is common ground that in light of MNR et al v Kruger Inc et al, [1984] CTC 506; 84 DTC 6478, subsection 231(4) of the Income Tax Act is inconsistent with the right to be secure from unreasonable search and seizure guaranteed by section 8 of the Charter and is no longer of any force and effect.
Although counsel for the applicants agree that section 8 of the Charter is not to be read as having a restrospective application, they do argue that on a liberal and common sense reading of the section, a current unreasonable detention of documents seized before the enactment of the Charter would fall within the ambit of section 8. In addition they argue that there existed at common law a right against unlawful search and seizure, that section 8 codified and enlarged the right in a constitutional context and that section 24 provides an effective remedy for its breach. They point to the significance of the choice of the word “guaranteed” in section 24 as indicating an intention to include a right which existed prior to the enactment of the Charter.
In essence the basis of the application is that the two search and seizure actions carried out under the authority of subsection 231(4) of the Income Tax Act were for several reasons unlawful under the then existing law, that the continuing unlawful detention of the documents post-Charter is an infringement of a right guaranteed by section 8 of the Charter and the remedies envisaged in section 24 are available. In the alternative, it was argued that even if the searches and seizures were lawful at the time, in view of the fact that subsection 231(4) has been found to conflict with section 8 of the Charter, there is now no valid authority justifying the retention of the documents, therefore there is a current breach of section 8 and again the remedies in section 24 become available. Having arrived at this point they further contend that a series of pre-Charter illegalities that occurred prior, during and subsequent to the seizures become relevant to the appropriate deter- miniation of whether to exclude the documents from evidence under subsection 24(2) or whether to order their return under subsection 24(1).
The nature of the application and the complexity of the legal arguments require a rather detailed account of the factual events. Both the defendants and the Crown filed a book of exhibits on the motion and both parties called as witnesses Department of National Revenue investigators who participated in the searches and seizures.
The documents which are the subject matter of this application may conveniently be grouped into two categories:
1. The May 13, 1975 seizure:
Documents seized by the Department of National Revenue on May 13, 1975 pursuant to subsection 231(4) of the income Tax Act, and
2. The March 1, 1977 seizure:
Documents first seized in three actions by the RCMP on July 24, August 27, and September 12, 1975 pursuant to the Criminal Code, subsequently seized from the RCMP by the Department of National Revenue on December 23, 1976, purportedly pursuant to paragraph 231 (1 )(d) of the Income Tax Act (quashed by Mahoney, J) and subsequently re-seized by the Department of National Revenue on March 1, 1977 pursuant to subsection 231(4) of the Income Tax Act.
l. May 13, 1975 seizure
1. The Facts
(a) The Authorization
The May 13, 1975 seizure was effected under an authorization pursuant to subsection 231(4) of the income Tax Act. The authorization is divided into two parts. The first part relates to the seizure of documents from the residence of Burnett and the offices of his companies. The second part relates to seizures from third party premises. The authorization reads as follows:
IN THE MATTER OF the Income Tax Act
— and —
IN THE MATTER OF Goden Holdings Limited, Ruthbern Holdings Limited, Kel- burn Management Limited and Joseph Burnett.
AUTHORIZATION TO ENTER AND SEARCH
The Director, Special Investigations Division, Department of National Revenue, Taxation hereby authorizes G E LANGLEY, E EC DRAKICH, R F WELTON, J T MARLEY, E TOTH, C- E C BAKER, B P BIRD, R G COX, D A DUNCAN, R A PRINCE, A F LUNGE, R J MILLETT, R F THOMPSON, M G COELHO and D J KIMBALL, officers of the Department of National Revenue, or any of them, together with such members of the Royal Canadian Mounted Police or other peace officers as they, or any of them, may call on to assist them, or any of them, to enter and search, if necessary by force, the following premises and any receptacles or places therein:
(a) The private residence of Joseph Burnett at 15 High Point Road in the Municipality of Metropolitan Toronto, Ontario, and all conveyances owned or operated by him.
(b) The offices of CNA Investors Group Ltd, including all areas occupied or used by Joseph Burnett, BA, LLB, Goden Holdings Limited, Ruthbern Holdings Limited and Kelburn Management Limited, or any of them, at Suite 900, 65 Queen Street West in the Municipality of Metropolitan Toronto, Ontario, and all storage facilities owned or controlled by them at 65 Queen Street West in the Municipality of Metropolitan Toronto, Ontario.
(c) All conveyances owned by Ruthbern Holdings Limited including but not necessarily limited to the following:
(i) 1974 Rolls Royce automobile bearing Province of Ontario licence number JDJ 648.
(ii) 1974 Rolls Royce automobile bearing Province of Ontario licence number CNA 900.
(iii) 1973 Cadillac automobile bearing Province of Ontario licence number DWF 656.
(iv) 1972 Mercedes Benz automobile bearing Province of Ontario licence number BKX 797.
for documents, books, records, papers or things which may afford evidence as to the violation of any provision of the Income Tax 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, and
(d) The offices of Samuel Gotfrid, Barrister & Solicitor, at Suite 1900, 65 Queen Street West, in the Municipality of Metropolitan Toronto, Ontario, and all storage facilities owned or controlled by him at 65 Queen Street West, in the Municipality of Metropolitan Toronto, Ontario.
(e) The offices of Zeifman & Co, Chartered Accountant, at Suite 401, 3101 Bathurst Street in the Municipality of Metropolitan Toronto, Ontario, and all storage facilities owned or controlled by them at 3101 Bathurst Street in the Municipality of Metropolitan Toronto, Ontario.
(f) The offices of Perlmutter, Orenstein, Giddens, Newman & Co, Chartered Accountants, at the 10th Floor, 121 Richmond Street West, in the Municipality of Metropolitan Toronto, Ontario, and all storage facilities owned or controlled by them at 121 Richmond Street West, in the Municipality of Metropolitan Toronto, Ontario.
for documents, books, records, papers or things which may pertain or relate to Goden Holdings Limited, Ruthbern Holdings Limited, Kelburn Management Limited and Joseph Burnett, or which may afford evidence as to the violation of any provision of the Income Tax 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.
GIVEN under my hand at the City of Ottawa, Province of Ontario, this 8th day of May, 1975.
“(Signed)”
Director
Special Investigations Division.
After having considered the application made by the Director of Special Investigations based on the affidavits of Gary Edmund Charles Baker and Manuel Con- calves Coelho, I hereby approve of the above authorization, which approval is also indicated on the preceding page by my initials.
“(Signed)” DATED AT Toronto County Court Judge of the this 12th day of May 1975. Judicial District of York
The authorization was signed by the Director, Special Investigations Division, Department of National Revenue (“DNR”), Taxation on May 8, 1975. On May 12, 1975 the authorization, along with two affidavits sworn by Gary Edmund Baker and Manuel Concalves Coelho, officers of DNR, was considered by MacRae, Co Ct J and approved on that date.
The supporting affidavits alleged reasonable and probable grounds referable to an income tax violation by Ruthbern Holdings Limited and Joseph Burnett in relation to the non-disclosure of $20,000 of income from the Whitby Mall transaction (now item #1 in the prosecution as outlined in the Crown's opening statement). The affidavits allege that an amount of $20,000 was paid by York Management and Consultants Limited to Kelburn Management Limited as a financing fee in relation to the Whitby Mall. This amount was initially secured in June 1971 by a mortgage to Goden Holdings Limited and was paid to Kelburn on May 3, 1972. Kelburn paid this amount to Ruthbern which in turn credited it to Burnett’s shareholder advance account. Burnett was director and officer of Goden, Kelburn and Ruthbern and active in their day-to-day operations.
Burnett allegedly advised Coehlo that the $20,000 was income of Gotfrid and Burnett, a law firm of which Burnett was a partner in 1969, 1970 and 1971. He produced summary income sheets of the partnership showing a receipt of $20,000 from York Management (Whitby) and a receipt of $6,825 from Revenue Properties, a client of the law firm. Entries in the client ledger and the record of cheques and receipts of the law firm allegedly showed no receipt from York Management but instead showed the full amount of $26,825.05 a receipt from Revenue Properties. The affidavits alleged that Burnett caused the false summary sheet to be prepared and failed to include the financing fee of $20,000 in the return of Ruthbern or Burnett.
The affidavits further alleged that Zeifman and Co, Chartered Accountants, performed accounting services for Goden Holdings Limited, Ruth- bern Holdings Limited, Kelburn Management Limited, Gotfrid and Burnett, Barristers and Solicitors, and Joseph Burnett.
The firm of Perlmutter, Orenstein, Giddens, Newman and Co, Chartered Accountants, prepared the financial statements for Gotfrid and Burnett, Barristers and Solicitors, for the 1969 and 1970 taxation years.
Gary Edmund Baker, a senior investigator of the Special Investigation Section, testified that the Department of National Revenue was concerned with a number of additional fees involving Burnett and his companies spanning the years 1968 to 1974. Baker inspected the audit records of the defendants and records of the various other parties concerned. He testified that it took eleven months to assemble the evidence regarding the York Management fee alone.
(b) The Seizures
On May 13, 1975 searches were simultaneously conducted on the various premises. It is clear from the evidence that the seizures were extensive. The documents obtained on May 13, 1975 filled 76 boxes. Gary Baker testified that the relevant classes of documents and relevant time period were predetermined and participating officers were given guidelines as to what was to be seized at a two-hour briefing session.
Two boxes of documents were seized from the private residence of Joseph Burnett. Department of Revenue officers were instructed to seize all records, papers or documents of a business nature in Mr Burnett's home and to be alert for any documentation relating to the construction and furnishing of his private residence which could have been charged to one of Mr Burnett's corporations. One box of documents was returned. The remaining documents have been retained by the Department of National Revenue.
Thirty-four boxes of documents were seized from the offices of CNA Investors Group Ltd. Seizing officers were instructed to seize documents of the following businesses: Goden Holdings Limited, Kelburn Management Limited, Ruthbern Holdings Limited and the partnership of Gotfrid and Burnett. The officers were instructed not to seize the documents of CNA companies. Gary Baker testified that the officers were instructed to seize all documents relating to items of income for the years 1968 to 1972. The only expense-related documents required were those relating to Burnett's personal residence. The officers determined the relevance of the material by file and not by document. A number of CNA documents were seized in error and returned.
Twelve boxes of documents were seized from the offices of Samuel Gotfrid, QC at 65 Queen Street West, Toronto. Twenty-four boxes of documents were seized from his storage facilities located at 133 Richmond Street West, Toronto, a location not specified in the authorization. Gary Baker testified that the officers were instructed to seize the records of Gotfrid and Burnett for the period January, 1968 to December, 1972, inclusive and in particular to seize all loan files, books of account and all client files but not documents relating to expenses. Russell Welton, a DNR officer involved in the Gotfrid search, testified that Mr Gotfrid advised the officers of the 133 Richmond Street West storage area and accompanied them to that location. The documents were in disarray and were apparently in the process of being destroyed. The issue of whether Mr Gotfrid consented to the search and seizure at 133 Richmond Street West is discussed later in these reasons.
Two boxes of documents were seized from the offices of Zeifman and Co. Seizing officers were instructed to restrict their search to records of Joseph Burnett, Goden Holdings Limited, Kelburn Management Limited, Ruthbern Holdings Limited and Gotfrid and Burnett. In addition to the files relating to those parties, working papers for various companies in which Burnett or Ruthbern had an interest were seized. Mr Baker explained that the financial statements of these companies were filed with the returns of Burnett or Ruthbern.
The 1969, 1970 and 1971 working paper files for the Gotfrid and Burnett partnership and a correspondence file were obtained from the offices of Perlmutter, Orenstein, Giddens, Newman and Co. Seizing officers were instructed to seize the Gotfrid and Burnett [or Gotfrid, Burnett and Kelner] partnership records for the period January, 1968 to December, 1972, inclusive. The officers were instructed not to seize records pertaining to Samuel Gotfrid.
The Department of National Revenue has retained the custody and control of all documents seized except for a relatively small number of documents which were returned, the receipts for which were filed as exhibit 4. Burnett was afforded access to all documents and was provided with copies upon request. An inventory of the documents seized on May 13, 1975 was filed as exhibit 2-2. Exhibit 2-5 is a list furnished to the defence, of documents which the Crown currently intends to tender at the trial. Baker testified that 25 per cent of the documents seized were placed into “evidence boxes" as being potentially relevant at trial.
2. Validity of the May 13, 1975 Searches and Seizures
Counsel for the applicants submit that the search and seizure actions conducted on that date under the authority of subsection 231(4) of the Income Tax Act were illegal at the time they were executed. The validity is attacked on two grounds:
(1) That the authorization dated May 12,1975 is on its face invalid; and
(2) That the search and seizure actions were carried out in such a way as to exceed their authorized scope.
(a) Section 231(4) of the Income Tax Act
The authorities interpreting subsection 231(4) of the Income Tax Act frequently affirmed its broad and sweeping scope. Subsections 231(4) and (5) 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.
The violations in respect of which the search may be authorized are not confined to those for which there are reasonable and probable grounds: In re MNR v Paroian et al, [1980] CTC 131; 80 DTC 6077 (Ont CA); Royal Craft Products Ltd and Coulson v The Queen, [1980] CTC 97; 80 DTC 6143 (Alta CA). It follows that the section does not require the violation in respect of which the search is authorized to be particularized in the authorization beyond using the words of the provision itself: In re MNR v Paroian et al, supra, at 138 (DTC 6083). It is precisely because of the breadth of the general search and seizure authorized by subsection 231(4) that it has been held to contravene section 8 of the Charter and to be since the Charter of no force and effect. In MNR et al v Kruger Inc et al, supra, at 512 (DTC 6483) Pratte. J stated:
I would be ready to concede that, in certain circumstances, the fact that a taxpayer has committed a serious offence under the Income Tax Act may justify the inference that he probably also committed other offences under the Act. However, I cannot accept the general proposition that the mere fact that a taxpayer has, at a particular time, committed an offence under the Income Tax Act or the Regulations, however trifling that offence, affords sufficient justification for the general power of search and seizure conferred by subsection 231(4). In my view, that subsection violates section 8 of the Constitution Act, 1982 in that it contravenes the right of the taxpayer “to be secure against unreasonable search and seizure”.
[Emphasis added.]
I emphasize, however, that on the application I am called upon to determine the legality and not the reasonableness of the May 13, 1975 search and seizure actions. Prior to the enactment of the Charter, subsection 231(4) legally authorized what have now been held to be unreasonable searches and seizures.
Broad as subsection 231(4) was, in my opinion, it did not authorize the seizure of anything that may afford evidence of any violation by an entirely unrelated third party unconnected to the parties implicated in the violation alleged in the affidavit. Morden, JA interpreted the requirements of the section in In re MNR v Paroian et al, supra, at 139 (DTC 6084) as follows:
.. I would think that in most cases, particularly where the premises to be searched are those of third parties, such as lawyers’ offices or banks, it is necessarily implicit that the persons be identified [in the authorization].
[Cited with approval in Goodman v Rompkey et al (1982), 137 DLR (3d) 46 at 56 (SCC).]
(b) The authorization
I have already reproduced in full the authorization for the May 13, 1975 search and seizure. It is divided into two parts, the first relating to Burnett's residence and to the CNA premises and the second relating to third party premises.
Counsel for the applicants argued that the first part of the authorization was bad since it permitted the search of third party premises, namely CNA Investors Group Ltd, without specifying the targets of the search. I am not convinced that CNA is, strictly speaking, a third party. The supporting affidavit relates that Ruthbern owned 50 per cent of CNA’s common shares and that the CNA premises housed the offices of the target companies. In view of the relationship between Ruthbern and CNA, in my opinion the authorization could and did permit the seizure of CNA documents notwithstanding the instructions given to the seizing officers not to take any CNA documents except, of course, as they related to the targets of the search.
The second part of the authorization contains what Crown counsel termed a typographical or inadvertent error. The Crown concedes that as framed, the second part of the authorization permits two seizures:
(1) of any documents pertaining to the targets,
or
(2) of any evidence of income tax violations.
Normally an authorization under subsection 231(4) (as is evident from the reported case law) employed the words “that” or “which” rather than the word “or”, so that each phrase modified the other. The officers testified that they believed that the authorization was in the form always used and indeed that they executed the warrant as if it was properly restricted. In my view, the error was of an inadvertent nature. However, because of the misleading nature of the error from the point of view of the citizen whose premises were to be searched, the authorization must be strictly construed as framed.
It is perfectly clear that the statute authorizes the seizure of documents only if they may afford evidence of an income tax violation. To authorize the seizure of any document pertaining to the targets of the investigation, obviously exceeds the scope of the enabling legislation. Furthermore, the failure to name the targets of the investigation in the circumstances of a search and seizure at the premises of a third party professional is fatal to this part of the authorization. As framed, it permits the seizure of documents pertaining not only to the professionals themselves but also to their completely unrelated clients.
Accordingly, I find that the second part of the authorization which deals with the search of third party premises is invalid on its face. I have no hesitation in severing the invalid part from the part authorizing the search at Burnett’s residence and at the CNA premises. The two parts have no connection with one another. Separate searches and separate premises are involved.
Re Regina and Johnson and Franklin Wholesale Distributors Ltd (1971), 3 CCC (2d) 484 at 490 (BCCA).
(c) 133 Richmond Street West
It was argued by counsel for the applicants that even if the authorization was valid, the searches and seizures effected were unlawful as they exceeded their authorized scope. The first objection relates to the seizure of documents at 133 Richmond Street West, a storage area of Samuel Gotfrid which was not named in the authorization. The seizure at that location is clearly unlawful unless the Crown establishes consent. I accept the evidence of Russell Whelton, the officer in charge of the search at Mr Gotfrid’s premises. While his testimony on this point was at times confusing, on the whole tenor of the evidence, it appears that Mr Gotfrid did in fact consent to the seizure at 133 Richmond Street West of documents within the parameters of the authorization. Whelton stated that Gotfrid volunteered the existence of the storage area, advised him that the documents there were to be destroyed, accompanied the officers to the area and left them there with a key. Many of the documents were in garbage bags. Whelton testified that he was aware that the premises were not named on the warrant and that he would not have gone there without Gotfrid’s permission. Whelton testified that he may have told Gotfrid that another authorization could be obtained. Although Mr Gotfrid subsequently objected to the seizure at his premises generally, he apparently was satisfied once he was provided with a receipt detailing the documents taken. Significantly, the receipt does not include a list of the documents taken from 133 Richmond Street West. In all these circumstances, I am satisfied that Gotfrid did in fact consent to the seizure at 133 Richmond Street West in so far as the documents fell within the proper scope of the authorization as it related to his other premises.
A large number of the documents taken from 133 Richmond Street West were clearly outside the parameters of the search. For example, Mr Got- frid's client files from the 1940s and 1950s were taken. Whelton admitted that in view of the fact that Mr Gotfrid had advised him that the documents were to be destroyed, he was not as concerned with the guidelines as he would otherwise have been.
In a search and seizure of this breadth a number of documents will inevitably be taken in error. The items falling outside the authorized parameters of the seizure will be unlawfully seized. This would not however in my opinion invalidate the entire seizure. Although counsel were unable to provide me with any cases on this point, it seems to me that only the irrelevant items would be unlawfully seized unless the extent and nature of the unlawful seizure was of such significance that it tainted the whole operation. In my opinion, the seizure from 133 Richmond Street West was such a seizure and was therefore unlawful.
(d) The Authorized Scope of the Searches and Seizures
With respect to the nature of the search and seizure as a whole, the evidence established that after a full audit and an eleven-month investigation, Baker considered and determined what classes of documents could, in his opinion, afford evidence of an income tax violation. Generally speaking, Baker defined the standards of relevance by reference to the parties implicated in the alleged violation, the years under investigation (1968 to 1974) and in most cases restricted the class of documents to be seized to those of an income nature. Baker testified that all items related to income, unreported or reported, were necessary to investigate the allegedly false returns of Burnett and Ruthbern In essence, his rationale was that the relationship of reported income to unreported income had to be examined in order to determine whether there was a pattern of non-disclosure and whether the non-disclosure was inadvertent or deliberate.
It is clear on the evidence that the officers executing the search seized the documents by reference to the files and did not examine the documents contained therein individually. At Gotfrid's premises and Zeifman's premises, the officers seized the files after examining index cards which were provided for their perusal.
A great many documents were seized on May 13, 1975. All documents of a business nature at Burnett's residence were seized and officers inspected Mrs Burnett's safety deposit box. A number of CNA documents were seized from the CNA premises. All client files of the law firm of Gotfrid and Burnett for the target years were seized. Working papers of companies whose financial statements were attached to Burnett's or Ruthbern's returns were seized from Zeifman and Co. Files relating to Mrs Burnett and her private company were left behind upon Zeifman's objection to their seizure.
Counsel for the applicants urged me to characterize what occurred as a wholesale seizure without a search. They pointed to a number of items on the inventory filed as Exhibit 2-2 which, in their submission, bore no connection to a tax violation or were outside the guidelines given. They argued that the actions regarding Mrs Burnett and 133 Richmond Street West make it clear that there was no attempt by the officers to stay within the authorization or even within their own guidelines.
I fail to see what real use I can make of the inventory list. It is impossible from my vantage point to determine the relevance of any particular item to a possible tax violation based upon the terse description given on the list. Certainly, some of the CNA documents listed pertain to one of the target companies. Most of the items put to Baker during his cross-examination, were justified by him as pertaining to the income of Ruthbern or Burnett. I can conceive that even a Christmas card list can, in some circumstances, provide some evidence of a tax violation, as for example tending to establish a relationship between parties. In my view it has not been established that a significant number of irrelevant documents were taken relative to the search and seizure action.
In my view the difficult issues that arise in assessing the propriety of the conduct of a search and seizure action under subsection 231(4) of the Income Tax Act are as follows:
(1) To what extent must the documents be examined at the time of the search in order to constitute a valid search. More particularly, must each document be examined individually for its evidentiary value?
(2) What standards should be applied in determining whether documents or records ‘may afford evidence as to the violation of any provisions of the Income Tax Act or Regulations”?
It is clear that the documents were not examined individually in the present case. Files were examined only to the extent necessary to determine whether they fell within the classes of documents that Mr Baker had predetermined were relevant. Counsel for the applicants submitted that only an examination of each document individually would constitute a valid search under subsection 231(4). Consequently, they argued, there was no authority to take documents that were not so examined individually for their evidentiary value. The applicants relied heavily on Kelly Douglas and Company Limited v The Queen et al, [1981] CTC 457 at 461-62; 82 DTC 6036 at 6039- 6040 (BCSC):
As I view subsection 231(4), it is to be considered in two parts. The first part is the entry and search for evidence, the second is the seizure of evidence. They are not the same thing as the only seizure that is authorized is of documents that may afford evidence of a violation. If no documents are found in the search that may afford evidence, then nothing can be seized. Likewise, the authorization does not permit documents to be taken that have not been examined or searched for their evidentiary value in proving a violation.
Therefore, a wholesale seizure is not authorized. The scheme of the Act is not to seize, then search — but to search, and seize only documents that may afford evidence of violations.
I have carefully read the affidavits of the officers of the Tax Department and the cross-examination of both Mr Kanjer and Mr Brown and am unable to find that there were any documents or records examined or seized that in the words of the section “may afford evidence as to the violation of any provisions of the Income Tax Act or regulations”. I find that the records seized in this case were not lawfully seized pursuant to the authorization. There is no right to seize, then search, and if the officers are not able to say that they seized documents that may provide evidence of the breach, then those documents cannot be seized by the Department and must be returned.
In In re MNR v Paroian et al, supra, at 138 (DTC 6083), Morden, JA stated:
With respect to the obvious potential intrusion on personal rights of property and privacy, to which I have already referred, it is obvious that Parliament intended safeguards to be provided by:
(c) that those conducting the search will be officers of the Department and, possibly, other persons named in the authorization and who will, accordingly, have sufficient expertise in tax matters to confine seizures to what is relevant.
Counsel for the applicants submitted that it is implicit in that safeguard that the officers must look at the documents.
I agree that there must be some examination to see whether the documents or records may afford evidence of an income tax violation. If Kelly Douglas and Company Limited, supra, stands for the proposition that in every case, regardless of the circumstances, documents may be seized only if they have been examined individually for their evidentiary value, I do not accept it. (In that case none of the documents seized afforded any evidence of a violation.)
A search and seizure of the kind authorized here would take months to complete if each document had to be examined individually. To interpret the legislation in the way urged could well lead to the serious disruption of private and business premises, could involve inordinate strain on public resources, and might well found a legitimate complaint that the manner in which a search is executed is oppressive. To insist that in all cases the determination of relevance be based upon the examination of the documents at the time of the search is similarly impractical. It seems to me that the search must be as detailed as is necessary to determine whether the documents may afford evidence of a violation and that the detail required will depend on how broad the standards of relevance properly are.
The difficult question is precisely what standard is to be applied in assessing whether a document “may afford evidence as to the violation of any provision" of the Income Tax Act or regulations. The word “may" certainly suggests that a possibility rather than a probability of evidentiary value is envisaged. As has been often pointed out, subsection 231(4) is essentially an investigative power, perhaps the most important of a series of investigative powers given to the Minister in the context of an income tax system based upon self-assessment: MNR et al v Kruger, Inc et al, supra, at 517-18 (DTC 6487-88); Royal Craft Products Ltd and Coulson v The Queen et al, supra, at 102 (DTC 6147-48).
It seems to me that the standards both for how detailed an examination of the documents must be and for how to assess whether the documents may afford evidence of a violation, must depend to a large degree on the circumstances of the particular investigation. Generally speaking, the more complex the transactions being investigated, the broader the standards of relevance will be.
A search and seizure based upon a document by document examination and based upon strict standards of relevance may well be appropriate in an allegation of a simple violation. In such a case the evidentiary value of a document will probably oe quite evident. Where the alleged misconduct is of a complex nature in which funds are allegedly funnelled through a number of interrelated companies with a view to hiding their disposition, it seems to me that the number of documents that may afford evidence of such a violation may well be very great indeed. In such a case, an entire class of documents may in fact be necessary to trace the transactions. Granted, many documents in a file may not, in the final analysis, be relevant to any tax violation. However, it may be impossible to preclude their relevance without a detailed examination of all the documents seized.
In the present case the search was admittedly extensive and the standards of relevance broad. Because of the complexity of the transactions, the alleged convoluted movement of funds, the number of interrelated companies involved, the alleged falsification of records and the requirement of a deliberate rather than inadvertent failure to report, in my view the seizure of broad classes of documents was justified. I have borne in mind Baker’s testimony that in addition to the transaction set out in the affidavit, other financing fees were being investigated at the time.
Although the officers examined files only in a general way, I am satisfied that this constituted a sufficient search of the nature of the files seized to determine whether they fell within the predetermined classes of relevant documents.
I am satisfied that the seizure from Burnett's personal residence of all business records and the seizure from the Goden, Kelburn & Ruthbern premises at 65 Queen Street West did not exceed the scope of the seizure authorized at that time by subsection 231(4) of the Income Tax Act. In view of my finding that the authorization with respect to the premises of Samuel Gotfrid, Zeifman and Co and Perlmutter, Orenstein is invalid, it is not necessary to decide whether the seizures there were excessive. Had the authorization been properly framed, I would have held that the seizures effected at the accountants' offices were within the proper ambit of the section. The seizure of all client files of the partnership of Gotfrid and Burnett, however, gives me considerable pause. The partnership as such was not under investigation. Crown counsel stated that the partnership income formed income of Burnett and was thus relevant. On the basis of the affidavits, it seems to me that seizure was only necessary to negate a defence or explanation allegedly put forward by Mr Burnett. It may well be that such a seizure was nonetheless authorized, particularly in view of the alleged falsification of the law firm's records.
Therefore, in my judgment, the general manner in which the May 13, 1975 searches and seizures were executed did not exceed their authorized scope. With respect to the seizure from 133 Richmond Street West, I am satisfied that Mr Gotfrid consented to a seizure within the ambit of subec- tion 231(4). I do find, however, that the seizure there was unlawful; it was a wholesale seizure and exceeded the scope of Mr Gotfrid's consent.
In the result, I find that the seizures from the premises of Samuel Gotfrid (including 133 Richmond Street West), Zeifman and Co and Perlmutter, Orenstein, Giddens, Newman and Co were unlawful. All other search and seizure actions on May 13, 1975 were properly authorized and properly executed.
II. March 1, 1977 Seizure
1. The Facts
(a) The RCMP Seizures
On July 24, 1975, pursuant to a Criminal Code search warrant authorizing the seizure of “accounting documents, including ledgers, journals, cancelled cheques, cheque stubs and other documents and material" from the offices of CNA Investors Group Ltd, Ruthbern Holdings Limited and Kel- burn Management Ltd in relation to the commission of the offence of “theft section 294(a) Criminal Code”, Constable Cameron, a member of the RCMP seized numerous records from the premises located at 65 Queen Street West, Suite 900, Toronto, Ontario.
Constable Cameron conducted two further search and seizures at the same premises on August 27 and September 12, 1975 pursuant to Criminal Code search warrants authorizing the seizure of specified documents.
Investigators from the Department of National Revenue had access to and examined the books and records while in the possession of the RCMP. Access by the DNR was arranged informally and was not obtained pursuant to an application under subsection 446(5) of the Criminal Code.
(b) DNR seizure from the RCMP, December 23, 1976
On December 21, 1976 an application was filed pursuant to section 446 of the Criminal Code for the return of the documents. On that same afternoon, Burnett was advised by a solicitor for the Attorney-General that criminal proceedings against him would not be instituted and that all documents would be returned on December 23, 1976.
On the morning of December 23, 1976, all books and records in the possession of the RCMP were seized by the Department of National Revenue. The seizure of the 72 boxes was purportedly made pursuant to paragraph 231(1)(d) of the Income Tax Act. Baker testified that on the basis of his examination of the records while they were in the possession of the RCMP he was of the opinion that all the documents afforded evidence supporting violations of the Income Tax Act.
On January 3, 1977, Joseph Burnett, Burnac Corporation Limited, Burnac Mortgage Investors Limited and Burnac Investors Realty Limited brought an application against the Minister of National Revenue to quash the December 23, 1976 seizure.
On February 4, 1977, Mahoney, J of the Federal Court, Trial Division, quashed the December 23, 1976 seizure, holding that the RCMP premises were not premises or a place where a person, authorized for the purposes of subsection 231(1) of the Income Tax Act, is authorized to enter and to audit, examine and seize the books or records of the corporate applicants.
(c) DNR Re-seizure, March 1, 1977
The Department of National Revenue retained the documents pending the decision as to whether or not to appeal the order of Mahoney, J. On February 25, 1977 Burnett was advised that the order would not be appealed.
On the same date, February 25, 1977, Gary Edmund Baker swore a thorough and extensive affidavit in support of an application for the approval of a Ministerial authorization to enter, search and seize the documents to be returned pursuant to Mahoney, J’s order.
The affidavit makes full disclosure of the circumstances surrounding the initial RCMP seizure, the seizure by the DNR on December 23, 1976, the subsequent quashing of that seizure by Mahoney, J and the imminent return of the documents. Baker deposes that as a result of his examination of the documents while in the possession of the RCMP and of his examination of the records of the various companies, financial institutions and individuals involved, he had reasonable and probable grounds to believe that:
(1) CNA Investors Group Ltd had committed the offences of failing to report income received of $215,000 in its 1974 return and of falsely claiming expenses of $6,089.88 in its 1973 return; and
(2) Burnett had committed the offences of failing to report income received of $340,000 in his 1973 return and of $911,089.88 in his 1974 return.
The transactions alleged relate to items 29, 30, 31, 32, 33, 35 and 36 in the prosecution as outlined in the opening statement of Crown counsel. In part, it is alleged that $855,000 in fees and commissions for loans arranged by CNA Mortgage Investors Ltd were paid to Federal Mortgage Corporation on behalf of Goden and eventually found their way through the Banco Obrero in Puerto Rico to Ruthbern, where they were credited as a loan payable to Burnett. These moneys were not reported as income in Burnett's returns.
On the basis of the supporting affidavit, the Director-General, Special Investigations, Department of National Revenue, pursuant to subsection 231(4) of the Income Tax Act, authorized certain Department of National Revenue officers to search “the business premises and offices of Burnac Corporation Limited, Burnac Realty Investors Limited, Burnac Mortgage Investors Ltd and Joseph Burnett . . . at 65 Queen Street West” and “any vehicles owned, rented, leased or controlled" by the said parties, “for documents, books, records, papers or things that may afford evidence as to the violation of any provision of the Income Tax Act or regulations and to seize and take away any such documents, books, records, papers or things . .
On February 28, 1977, Cornish, Co Ct J approved the authorization.
The 72 boxes of records seized from the RCMP were sorted into 75 boxes by DNR officials, loaded into a van and taken to the offices of Burnac Corporation at 65 Queen Street West on March 1, 1977. Burnett told the investigators to take the records to the loading dock. The truck and its contents returned to the Revenue building, ostensibly because the loading dock was blocked by another truck. Obviously the documents were retained because the DNR was uncertain that the loading dock would constitute the necessary repossession required to execute the authorization.
That afternoon employees of Burnac Corporation Ltd arrived to receive the documents. The 75 boxes were reorganized by them into 66 boxes, a receipt was signed and the boxes were loaded onto a truck. Mr Baker produced the authorization and re-seized 49 of the boxes.
On March 7, 1977, Burnac Corporation, Burnac Realty Investors Limited, Burnac Mortgage Investors Ltd and Joseph Burnett launched a motion to quash the March 1, 1977 seizure.
On November 18, 1977, Mahoney, J denied the preliminary objections taken by the applicants, Burnac Corporation Limited et al, to three motions by the respondent, The Minister of National Revenue, seeking continued cross-examination of the deponents on affidavits filed in support of the original application. Burnac Corporation Limited et al subsequently filed a notice of appeal from the order of Mahoney, J. The appeal was discontinued. The same applicants also filed a notice of application for judicial review of the March 1, 1977 seizure, which application was subsequently discontinued on October 4, 1979.
The Department of National Revenue has retained the custody and control of virtually all documents seized on March 1, 1977.
2. Validity of the March 1, 1977 Seizure
Counsel for the applicants conceded that in determining the legality of the seizure of the second group of documents, the seizure on March 1, 1977 pursuant to the authorization approved under subsection 231(4) of the Income Tax Act is determinative. It is common ground that the illegalities alleged in respect of the prior seizures and examinations of those documents are relevant only as circumstances to be considered in the context of subsection 24(2) of the Charter.
It is conceded that the authorization is on its face lawful. Counsel argued that, as in the May 13, 1975 seizure, documents were seized that were outside the scope of the authorization. It is clear on the evidence that the documents had been examined in some detail by Mr Baker and that a significant number of the documents in the possession of the DNR were returned and not seized. In view of these facts and for the reasons discussed in relation to the scope of the May 13, 1975 seizure, I find no basis to conclude that this was a wholesale seizure. Accordingly, I find that the March 1, 1977 search and seizure was a lawful one.
III. Exclusion of Evidence under subsection 24(2) of the Charter
The applicants seek recourse to section 24 of the Charter. In the context of a pre-Charter search and seizure, the spectre of retrospectivity raises its head. A consistent line of authorities has held that the substantive rights conferred by the Charter speak prospectively. It is conceded that the rights in section 8 of the Charter cannot be applied retrospectively. Sections 8 and 24 read as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Subsections 24(1) and (2) have different threshold requirements. Subsection (1) is of general application and affords a broad discretionary remedy. Subsection (2), on the other hand, deals specifically with the exclusion of evidence, a far more drastic measure. It seems to me that the purpose of section 24 is to give meaningful effect to the guarantee of the rights and freedoms afforded by the Charter by providing a remedy for their infringement, thus reinforcing the constitutional rights and at the same time tending to deter inappropriate governmental action. Subsection 24(2) is prepared to achieve that result in a proper case even at the expense of the pursuit of truth.
Section 24 is clearly aimed at protecting constitutional rights. The section requires that the applicant be someone “whose rights or freedoms as guaranteed by this Charter have been infringed or denied”. Subsection 24(2) imposes the additional requirement that “evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter”. Both requirements raise difficult, but quite different, questions of interpretation and retrospectivity.
I propose to deal first with the main application under subsection 24(2) for the exclusion of evidence obtained pursuant to the search and seizure actions of May 13, 1975 and March 1, 1977.
1. Section 24(2) of the Charter
Subsection 24(2) requires that the “evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter”. (Emphasis added.) R v Longtin (1983), 5 CCC (3d) 12 (Ont. CA), R v Kresa- noski, unreported, Alta QB, released January 11, 1985 and Re Potma and The Queen (1982), 67 CCC (2d) 19 (Ont SC), refused to apply subsection 24(2) to exclude evidence obtained prior to the enactment of the Charter on the ground that to do so would involve a retrospective application of a substantive Charter right. In R. v Longtin, supra, at 15-16, Blair, JA held that section 8 did not apply to a pre-Charter search which was on the facts unlawful:
The recent decision of the Court of Appeal of Saskatchewan in R. v Lee (1982), 8 WCB 422 [since reported 1 CCC (3d) 327, 142 DLR (3d) 574] establishes that s. 10(b) of the Charter does not operate retrospectively. The right to be informed of the right to retain and instruct counsel is not a mere procedural rule but a new substantive right conferred by the Charter. It can apply only to persons arrested after the Charter took effect and, therefore, cannot apply to this case.
The same reasoning applies to s 8 of the Charter which creates the new substantive right to be secure against unreasonable search and seizure. That section does not have retrospective effect and, accordingly, cannot be relied on by the appellant.
On a plain and commonsense reading of subsection 24(2), the relevant time of the infringement of a Charter right is at the time the evidence was obtained. In this case the evidence was obtained at the time of the seizures in 1975 and 1977. In the context of a pre-Charter search and seizure, section 8 can be viewed as having been infringed at that time only if section 8 is given retrospective effect.
Counsel for the applicants submitted that subsection 24(2) merely provides a new remedy for the breach of common law rights which have subsequently been guaranteed by the Charter. It was urged that this approach is indicated by the use in section 24 of the phrase “guaranteed by this Charter” rather than the phrase “created by this Charter”. I do not agree that the use of the word “guaranteed” has the significance contended. It seems evident that the word “created” could have been substituted without incurring the danger of limiting the applicability of section 24 to Charter rights that had no prior existence in statutory or common law. In my view, the pivotal concern of subsection 24(2) is the manner in which evidence is obtained: it is only the violation of constitutionally entrenched rights that gives rise to the remedy in subsection 24(2).
Accordingly, I am of the opinion that subsection 24(2) cannot apply where evidence was obtained pursuant to a search and seizure effected prior to the enactment of the Charter.
2. Application on the Merits
In the event that I am wrong in my interpretation of the applicability of subsection 24(2) to a pre-Charter search and seizure, I propose to deal with the application on the merits and to examine whether it is established, in all the circumstances, that the admission of the evidence in these proceedings would bring the administration of justice into disrepute.
Evidence, although improperly obtained, is prima facie admissible. The onus under subsection 24(2) is upon the applicant to establish, on a balance of probabilities, that in all the circumstances, the admission of the evidence would tend to bring the administration of justice into disrepute: R v Chapin (1983), 7 CCC (3d) 538 at 541 (Ont CA); R v Simmons (1984), 45 OR (2d) 609 at 633 (CA); R v Noble (1984), 48 OR (2d) 643 (CA).
When will the admission of illegally obtained evidence tend to bring the administration of justice into disrepute? The so-called “community shock” test finds its roots in Lamer, J’s dissenting decision in Rothman v The Queen, [1981] 1 SCR 640 at 697; 59 CCC (2d) 30 at 74 in which he holds that a confession ought to be excluded from evidence if its admission would bring the administration of justice into disrepute:
The Judge, in determining whether under the circumstances the use of the statement in the proceedings would bring the administration of justice into disrepute, should consider all of the circumstances of the proceedings, the manner in which the statement was obtained, the degree to which there was a breach of social values, the seriousness of the charge, the effect the exclusion would have on the result of the proceedings. It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensberry rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rules be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.
In R v Simmons, supra, Chief Justice Howland cites the passage from the decision of Lamer, J and states at 634:
In my opinion, in determining whether the administration of justice has been brought into disrepute within s. 24(2), the following matters are of importance: the nature and extent of the illegality, the manner in which the evidence was obtained, the good faith or the lack of good faith of the persons who obtained the evidence, whether the accused’s rights under the Charter were knowingly infringed, and the seriousness of the charge. This list is not intended to be all- inclusive. There may be other matters of importance which should be considered.
If the evidence is obtained in such a manner as to shock the Canadian community as a whole, iot would no doubt be inadmissible as bringing the administration of justice into disrepute. There may, however, be instances where the administration of justice is brought into disrepute within s. 24(2) without necessarily shocking the Canadian community as a whole. In my opinion, it is preferable to consider every case on its merits as to whether it satisfies the requirements of s. 24(2) of the Charter and not to substitute a “community shock” or any other test for the plain words of the statute.
In R v Chapin, supra, where a search of a truck in which marijuana was found was held to be unreasonable by the trial judge within s. 8 of the Charter, this Court concluded that the conduct of the police officers was not such as to shock the community, and in any event the admission in evidence of the finding of the marijuana would not bring the administration of justice into disrepute. It was felt that the police officers had acted in good faith and there had been no flagrant abuse of power on their part, nor a gross invasion of privacy.
In R v Rao (1984), 46 OR (2d) 80 at 110-11, Martin, JA stated that evidence was properly excluded where “there was a gross abuse of power and a flagrant denial . . . of constitutional rights”. Ewaschuk, J takes a similar general approach in Gibson v The Queen (1983), 37 CR (3d) 175 at 187:
.. The administration of justice is said to have been brought into disrepute in the eyes of the community when courts who administer justice admit evidence in circumstances where the state has grossly abused its power at the expense of individual rights. To do so would greatly lower the court’s esteem in the eyes of right-thinking members of the community.
In my view the factors that predominate in this case are the nature and the extent of the illegalities, the good faith of the seizing authorities and the seriousness of the offences alleged.
The nature and extent of the illegalities alleged with respect to the May 13, 1975 search and seizure have already been discussed in some detail. I am satisfied that the authorization in respect of the premises of Gotfrid, Perlmutter and Zeifman was defective. Although the error was serious, I am convinced that it was an inadvertent, probably typographical error. Certainly the search and seizure was carried out as if the authorization was properly restricted. The leading case on subsection 231(4) of the Income Tax Act at the time was Bathville Corporations Ltd et al v Atkinson et al, [1964] 2 OR 17 (SC); [1965] 1 OR 340 (CA), which affirmed the broad and sweeping powers of the section and which stated that the targets of the investigation need not be named in the authorization. Baker testified that he had been trained in accordance with this case and that he believed he was acting within its confines.
With respect to the scope of the May 13, 1975 seizures, I have already stated that, except with respect to 133 Richmond Street West, I do not accept that they were wholesale seizures. No doubt a number of irrelevant documents were taken, however they were not shown to me to be significant relative to the nature and scope of the investigation. The documents seized at 133 Richmond Street West were largely irrelevant and Whelton testified that he was not overly concerned with the parameters of the search at that location because Gotfrid had told him that the documents were ready for disposal. While I agree that that does not justify the seizure, I do not believe that the seizing officers acted in bad faith.
I have already rejected the contention that the search and seizure of the documents on March 1, 1977 exceeded its authorized scope. The good faith of the officers is readily apparent from the fact that several boxes of documents were not re-seized at that time. Counsel for the applicants submitted that a litany of illegalities had been committed with respect to this second group of documents. I agree that these documents were twice seized unlawfully. The December 23,1976 seizure of documents from the RCMP pursuant to paragraph 231(1)(d) of the Income Tax Act was illegal and was quashed by Mahoney, J. Baker testified, however that they had every reason to believe that such a seizure was lawful. The case of Royal American Shows Inc v MNR, [1976] 1 FC 269; [1975] CTC 557 at that time sanctioned such a seizure and had not yet been overturned on appeal. Furthermore, I find nothing reprehensible about the obviously notional “return” that preceded the March 1, 1977 seizure.
In my view the RCMP warrants pursuant to which the documents were initially seized, were defective for failing to adequately particularize the offence alleged: Bergeron et al v Deschamps et al (1977). 33 CCC (2d) 461 (SCC). It was further submitted on behalf of the applicants that the informal access by the DNR to the documents already held illegally by the RCMP was illegal as no resort was made to subsection 446(5) of the Criminal Code. I am not, however, convinced that this section is restrictive rather than permissive.
In any event, it seems to me that the nature and extent of the illegalities alleged are not significant relative to the power under the statute and to the broad scope of the seizure. I accept the submission that the officers at all times acted in good faith and in accordance with the judicial interpretation of their powers at the time. Had I accepted all of the submissions of the applicants with respect to the pre-Charter illegalities (apart perhaps from the allegation that the seizures were wholesale), I would nonetheless have held that the administration of justice would not be brought into disrepute by the admission of the evidence in view of the fact that no constitutional rights were infringed and in view of the seriousness of the offences alleged. Tax evasion is by nature a serious fraud on the public purse. The success of a self-assessment system, depends in my view upon the public’s belief that everyone is paying their share of taxes. Mr Olsson, for the Crown, stated that the allegations in this case are as large and serious as any ever prosecuted in this country, the features of which include the alteration of documents, the co-opting of business partners into the scheme, the misleading of a witness with respect to her affidavit and the complicated movement of moneys offshore. Mr Olsson contended that in these circumstances, the exclusion of the evidence would bring the administration of justice into disrepute. I agree. The Crown should have the right to put forward its case on behalf of the public and have the matter tried on its merits.
IV. The Return of Documents under subsection 24(1 ) of the Charter
My decision under subsection 24(2) of the Charter does not fully determine the matter. In the alternative, the applicants apply for the return of the documents seized pursuant to subsection 24(1) of the Charter. Subsection 24(1) requires that the applicants’ “rights or freedoms, as guaranteed by this Charter, have been infringed or denied”. In the absence of authority I would have had serious doubts that any Charter rights could be infringed in a pre-Charter search and seizure without giving section 8 retrospective effect.
However, the Ontario Court of Appeal decision in Re Chapman and The Queen (1984), 46 OR (2d) 65 makes it clear that subsection 24(1) can be resorted to with respect to an illegal search and seizure that occurred prior to the enactment of the Charter. In that case, the Court considered the jurisdiction to order the return of objects seized pursuant to a search warrant which was defective. Associate Chief Justice MacKinnon, speaking for the Court, stated at 72:
It is true, in the instant case, that the article in issue was seized prior to the enactment of the Charter. However, as the Crown seeks to use it now as evidence, the invocation of ss. 8 and 24, in light of all the circumstances, does not give the Charter or the sections retrospective effect. To consider, in relation to s. 24, the circumstances surrounding the execution of the search warrant, and the subsequent condemned activities cited by the motions court judge which took place after the enactment of the Charter, is not, in my view, to give retrospective effect to the Charter.
The order made by Reid, J could be considered to have been made under s. 24(1) although his inherent jurisdiction to order the return of the article has not been taken away by the Charter. Under either approach, he had the grounds and the power to make the order he did.
In light of Re Chapman and The Queen, supra, subsection 24(1) and section 8 may be invoked with respect to an illegal search and seizure that was carried out prior to the proclamation of the Charter. I see no reason, however, to extend the application of subsection 24(1) to a pre-Charter search and seizure which was lawful at the time it was carried out. In my view, to apply section 24 to a pre-Charter search and seizure merely because it was carried out pursuant to a legislative authority which now contravenes section 8 would be to clothe the section with retrospective effect: contra, Blackwoods Beverages Ltd et al v The Queen et al, unreported, Manitoba Court of Appeal, released November 20, 1984.
Accordingly, the remedies in subsection 24(1) are applicable in relation to the articles unlawfully seized. However, with respect to the lawful seizures effected prior to the enactment of the Charter, the applicants’ rights or freedoms, as guaranteed by the Charter have not been infringed or denied.
Prior to the enactment of the Charter the prevailing view was that even where a warrant was quashed, the court's discretion to return material seized under the warrant should be exercised in favour of leaving the items seized with the Crown where it required the articles for evidence in a criminal proceeding: Model Power v R (1981), 21 CR (3d) 195 (Ont CA). As MacKinnon, ACJO stated in Re Chapman and The Queen, supra, with the enactment of the Charter the return of documents could be sought under subsection 24(1) of the Charter rather than pursuant to a superior court's inherent jurisdiction to order return when it quashes a warrant. Under the Charter, it would seem that the discretion is more heavily weighted in favour of return and the onus is on the Crown to show compelling grounds for the retention of articles seized in contravention of a constitutional right: See Re Weigel and The Queen (1983), 7 CCC (3d) 81 Sask QB) and Re Gillis and The Queen (1982), 1 CCC (3d) 545 (Que SC).
Re Chapman and The Queen, supra, and Blackwoods Beverages Ltd, supra, Re Weigel and The Queen, supra,and Re Gillis and The Queen, supra, ordered the return of documents notwithstanding the fact that they may have been required as evidence in the criminal proceedings. The applications in all those cases were made prior to trial. In my opinion different considerations apply when the application is brought during the course of the trial and the documents are required by the Crown as evidence in those proceedings. In such circumstances any remedy granted must not have the practical effect of overruling the determination already made in relation to the admissibility of the evidence under subsection 24(2). This is particularly true where the applicants had almost ten years (three of which followed the proclamation of the Charter) in which to pursue their remedy.
The power to order the return of documents unlawfully seized is a discretionary one. In my view it is inappropriate to return documents required as evidence when the application is brought at trial. In R v Rowbotham et al, an unreported judgment of the Supreme Court of Ontario, released November 2, 1984, Ewaschuk, J refused to quash a defective warrant at trial and refused to order the return of documents seized thereunder.
For the reasons given I made the following ruling on April 10, 1985. The application under subsection 24(2) of the Charter for the exclusion of evidence is denied. The application under subsection 24(1) for the return of materials seized on May 13, 1975 and March 1, 1977 is allowed in part: I direct the return of all materials seized on May 13, 1975 from the premises of Samuel Gotfrid QC, including 133 Richmond Street West, Zeifman & Co and Perlmutter, Orenstein, Giddens, Newman & Co except for the materials that the Crown reasonably foresees it will require as evidence at trial. The Crown shall file a list of such material, together with any copies thereof, to be returned.
Application allowed in part.