Rosenberg, J:—This is an application to quash the retention order made by the Honourable Judge Kenneth William Warrender on the first day of April, 1980. The application was originally made “pursuant to Rule 4 of the Rules respecting Criminal Proceedings”. At the opening of argument, the applicants’ counsel advised that the application was not being brought under the Rules respecting Criminal Proceedings and that these rules had been inadvertently referred to in the framing of the application. I advised counsel for the Attorney General that under the circumstances if she was taken by surprise, I would adjourn the matter to allow time to respond to this change in position. She elected to waive the irregularity.
Facts
1. Frank Pica and Antony Pica are officers of all of the corporate applicants but Astro Form Construction Limited (“Astro”). Their father is apparently the president of Astro.
2. Pro Form Construction Limited (“Pro Form”) and Astro failed to remit income tax, unemployment insurance and Canada Pension Plan source deductions for part of the year 1977 as a result of their banker’s refusal to honour any further cheques written by them.
3. The Department of National Revenue (“Revenue Canada”) attempted to recover the remittances that Pro Form and Astro were unable to make by reassessing Frank Pica and Antony Pica (the Picas). The Picas filed notices of objections to the reassessment. Revenue Canada withdrew its reassessment, and all moneys received from the Picas as a result of the reassessments were returned.
4. In August 1979, the Collections Section of Revenue Canada referred the file to the Special Investigations Division and the investigative officer reviewed the financial statements and income tax returns of the applicants.
5. On December 4, 1979, three members of Revenue Canada attended at the business premises of the applicants and seized documents, books, records, papers and other things belonging to the applicants (“the documents”) under the authority of paragraph 231(1)(b) of the Income Tax Act. The operation took two and one-half to three hours and the documents seized were all of the documents of the applicants that were financial in nature. All documents on the premises were taken. The documents filled twenty-one boxes and related to the years 1973 through 1979.
6. On December 20, 1979 Revenue Canada held a meeting with the Picas and Mr Nichols, their solicitor. The Picas delivered to Revenue Canada certain documents that they had in their home which were seized pursuant to 231(l)(d).
7. At that meeting, the Picas and Mr Nichols were informed that Revenue Canada was going to examine the circumstances surrounding the non-remittance to see if the direct cause of the non-remittance was some wrongdoing by the Picas. Mr Nichols was advised that if it were found that wrongdoing was not as a direct cause of the non-remittance that no prosecution would take place. The respondents acknowledged in their evidence and in their statement filed on this motion, that the attendance at the premises of the applicants was “in order to obtain more information concerning the deficient remittances on account of source deductions and the reason therefor”.
8. On March 28, 1980, an application was made by J R Giles, Director of Taxation, Hamilton and District Office of Revenue Canada to retain the documents after the expiration of the 120 day-period, referred to in subsection 231(2) of the Income Tax Act. An affidavit of Carolyn Davis was filed in support of that application. On April 1, 1984 an order was made by the Honourable Judge Kenneth William Warrender (“the retention order”) authorizing the retention of the documents.
9. The proceedings by the Hamilton District Office before Judge Warrender were far from satisfactory:
(a) The order referred to “the seized documents, books, records, papers or things are or may be required in relation to proceedings against the said Tony Pica and Antony Pica’’. No mention whatsoever was made of Frank Pica.
(b) The affidavit sworn by Carolyn Davis, which was the only material in support of the application, swore as to her personal belief rather than the belief of the Minister as required by the act.
10. Far more important however than the shortcomings of the documentation, is the failure of the District Office to act in good faith. The applicant became aware as a result of evidence given at the commencement of the prosecution hearing on October 30, 1984 that:
(a) Between the date of the seizure and the date of the application for the retention order, nothing was done by Revenue Canada with regard to investigation of the matter or the examination of the documents other than the compilation of an index of documents seized and notification to the applicants that the documents could be viewed in the offices of Revenue Canada. They made no efforts at the time of the seizure to determine which documents related to the “cause of the non-remittance’’ nor to determine how long it would take to examine them and whether or not it was possible to do so within the 120 days specified in the act.
(b) In the testimony of Miss Davis on the 30th day of October, 1984 it was disclosed that she had from the beginning been looking for other possible breaches of the Income Tax Act. The procedure adopted by the District Taxation Office in this case was characterized by Mr Speigel on the applicants’ behalf as a “fishing expedition’’.
The Taxation Office seized all documents and retained them for a period of years. They spent 3,600 man hours looking for possible offences before laying a charge. This is not what is contemplated or permitted by the section of the Act. The affidavit in support of the retention order refers only to the failures to remit. The applicants were cleared of any wrongdoing in that connection. The charges do not relate to the failure to remit. The evidence given at the opening of the prosecution makes it clear that the actions of the District Taxation Office throughout were inappropriate.
The Picas have been charged with income tax evasion. It is alleged that the Picas in their personal capacity and as officers and directors of the applicants overstated expenses and understated income. The trial commenced on October 29, 1984 and at the commencement of trial a motion was brought by the Picas alleging that the charges were statute barred under subsection 244(4) of the Income Tax Act and in the alternative that documents and evidence relating to seizures, which the Picas alleged were illegal, should not be admitted into evidence.
The learned trial judge ruled that the charges were not statute barred and that all seized documents were admissible.
A motion for prohibition was brought and argued before the Honourable Mr Justice Montgomery on November 27th and 28th 1984 and a decision dismissing the motion was rendered in January 1985, [1985] 1 CTC 73.
The decision of Mr Justice Montgomery is being appealed and I am advised that the appeal is not likely to be heard for many months.
Issues
There are three major issues:
1. Were the seizures made December 4 and December 20, 1979 illegal?
2. Should the retention order of March 28, 1980 be quashed.
3. In the event that the applicants are successful with regard to No 2, should the documents and all copies be returned to the applicants.
Were the Seizures Illegal?
Paragraphs 231(l)(a) and (d) provide as follows:
231. (1) Any person thereunto authorized by the Minister, for any purpose related to the administration or enforcement of this Act, may, at all reasonable times, enter into any premises or place where any business is carried on or any property is kept or anything is done in connection with any business or any books or records are or should be kept, and
(a) audit or examine the books and records and any account, voucher, letter, telegram or other document which relates or may relate to the information that is or should be in the books or records or the amount of tax payable under this Act.
(d) if, during the course of an audit or examination, it appears to him that there has been a violation of this Act or a regulation, seize and take away any of the documents, books, records, papers or things that may be required as evidence as to the violation of any provision of this Act or a regulation. [Emphasis added]
The evidence must relate to the violation and not to some other violation or a possible violation not uncovered by the person doing the audit.
This is particularly true in light of the fact that the section is an interference with the freedom and property rights of the individual. In the case of Kelly Douglas and Company Limited v The Queen et al, [1981] CTC 457; 82 DTC 6036; 129 DLR (3d) 154 MacDonnell, J, stated at 461 [6039]:
As I view s 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. [Emphasis added]
The principles of due process of law are of some value in assessing what happens following the authorization. The manner of seizure and what is seized must meet the due process of law test. Looked at another way, the section must be examined to see what can be seized and taken away. It is my view that for the officers of the Tax Department to lawfully deprive a person of his “enjoyment of property” it can only be done by “due process of law” as provided in the Bill of Rights. This means, in my view, when applied to s 231(4) of the Income Tax Act, that only documents that may afford evidence of violations may be seized. Due process prohibits the seizure of documents that do not afford evidence of violations. 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. [Emphasis added]
and at 462 [6040]:
. . . 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. [Emphasis added]
In Hunter et al v Southam Inc (1984), 84 DTC 6467 (SCC), Dickson, J said at 6472:
Historically, the common law protections with regard to governmental searches and seizures were based on the right to enjoy property and were linked to the law of trespass. It was on this basis that in the great case of Entick v Carrington (1765), 19 State Tr 1029 the Court refused to countenance a search purportedly authorized by the executive, to discover evidence that might link the plaintiff to certain seditious libels. Lord Camden prefaced his discussion of the rights in question by saying, at p 1066:
The great end, for which men entered into society, was to preserve their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole.
The defendants argued that their oaths as Kings’ messengers required them to conduct the search in question and ought to prevail over the plaintiffs property rights. Lord Camden rejected this contention, at p 1067:
Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave: if he does he is a trespasser though he does not damage at all; if he will tread upon his neighbour’s ground he must justify it by law.
Lord Camden could find no exception from this principle for the benefit of Kings’ messengers. He held that neither the intrusions nor the purported authorizations were supportable on the basis of the existing law. That law would only have countenanced such an entry if the search were for stolen goods and if authorized by a justice on the basis of evidence upon oath that there was “strong cause” to believe the goods were concealed in the place sought to be searched. In view of the lack of proper legal authorization for the governmental intrusion, the plaintiff was protected from the intended search and seizure by the ordinary law of trespass.
In my view the interests protected by s 8 are of a wider ambit . . .
Accordingly, I have come to the conclusion that the original seizure was illegal and not in accordance with the authorization in the Act.
Should the Retention Order be Quashed?
Both counsel acknowledged that a valid seizure is a necessary condition precedent to a valid retention order. Accordingly, the retention order should be quashed.
Even if the original seizure were valid, it is my view that the retention order should be quashed. In the case of Attorney General of Canada v Usarco Limited, [1980] CTC 145; 80 DTC 6085; (1980) 112 DLR (3d) 325 (Ont CA), a similar order was considered. That case was an appeal by the Minister from an order directing the return of the documents, and a cross-appeal by the taxpayer that there was insufficient evidence to justify the original retention order relating to the documents. The appeal was dismissed and the cross-appeal was allowed. In allowing the cross-appeal, Morden, JA said at 150 [6089]:
I agree with the judgment of Le Dain, J in Royal American Shows, Inc v His Honour Judge R McClelland and the Minister of National Revenue, [1978] 1 FC 72 that a proper s 231(l)(d) seizure is a jurisdictional condition precedent to the making of a valid retention order under s 231(2); and . . .
This, however, does not end the matter. Since a lawful s 231(1)(d) seizure is a jurisdictional requirement for a section 231(2) order, the judge is not the exclusive arbiter of this issue. His conclusion is susceptible to challenge on an application for certiorari wherein additional evidence may be placed before the court. That has been done in this case. The question now is: was there a lawful s 231(l)(d) seizure?
Section 231(2) reads as follows:
The Minister shall,
(a) within 120 days from the date of seizure of any documents, books, records, papers or things pursuant to paragraph (1)(d), return the documents, books, records, papers or things to the person from whom they were seized unless a judge of a superior court or county court, on application made by or on behalf of the Minister, supported by evidence on oath establishing that the Minister has reasonable and probable grounds to believe that there has been a violation of this Act or a regulation and that the seized documents, books, records, papers or things are or may be required as evidence in relation thereto, orders that they be retained by the Minister until they are produced in any court proceedings, which order the judge is hereby empowered to give on ex parte application. [Emphasis added]
Section 232(2) [sic, 231(2) I requires the judge to be satisfied by evidence on oath that the Minister has reasonable and probable grounds to believe (1) that there has been a violation of the Act or a regulation and (2) that the seized documents are or may be required as evidence in relation thereto.
In my view, the evidence before the judge clearly fell short of satisfying requirement (2) but, before I deal with this particular issue there are other aspects of Mr Banks’ affidavit that I should mention.
Section 231(2) requires the Minister (or by virtue of Regulation 900(5), it appears, the Director General, Compliance, the Assistant Director General, Compliance for Special Investigations, or any official holding a position of Director in the said Special Investigations of the Department of National Revenue, Taxation) to have reasonable and probable cause to believe in the existence of the matters to be covered. It may be that the affidavit satisfies this requirement, in an indirect way, in paragraph 12 where Mr Banks says that he has reasonable grounds to believe but I cannot see any practical reason why the affidavit was not addressed to the actual requirements of the provision. In the same vein, the provision (at least, in the English text) requires that there be reasonable and probable grounds. The affidavit refers only to reasonable grounds.
Further, paragraph 12 refers to a violation under s 239 of the Income Tax Act or a Regulation. It is clear that the range of documents which may be retained under s 231(2) has to relate to the violation which, on reasonable and probable grounds, the Minister believes has been committed. In this case the alleged violations appear to be confirmed to ss 239(1 )(c) and 239(1 )(d) of the Act. There is no suggestion in the material of the violation of any provision in the regulation. Further, the paragraph does not say that the seized documents are or may be required as evidence in relation to the violation in question.
I merely advert to these matters and base no conclusion on them. It may well be that they are simply matters of form but they may, with respect, also be symptomatic of a general lack of attention to the actual requirements of the provision.
These latter comments of Morden, JA are especially significant since the acts complained of in this case were instituted by the same taxation office about one month after the Usarco decision was released.
Continuing further on 152 [6090], His Lordship states:
. . . The affidavit simply does not attempt to identify or describe, even in a general way, what documents were seized. This being the case, there was nothing in the affidavit to which the judge could direct his mind on the important question of whether the Minister had reasonable and probable grounds to believe that the seized documents were, or may have been, required as evidence in relation to the alleged violations. [Emphasis added]
In the present case, not only did the judge not have sufficient evidence before him to be satisfied that the seized documents were required as evidence in relation to the alleged violation, we now know that the documents were required for reasons that had nothing to do with the alleged violation.
At 153 [6091], His Lordship states:
Quite apart from the omissions in the affidavit to which I have referred there are specific statements in it which cast real doubt on whether the Minister had, or more directly, believed that he had, at the time of the application, evidence which could satisfy the requirement of s 231(2). It is sufficient if, within the 120 days following seizure, the evidence before the judge establishes that there are reasonable and probable grounds for the minister to believe the documents “are or may be required as evidence’’. While the continuance of the investigation after the 120 days is not in itself incompatible with s 231(2) being satisfied (paragraph 10), the specific statement in paragraph 11 “that the time required to complete the investigation will extend beyond the 120 days time limit set forth in subsection 231(2) of the Income Tax Act” carries the strong implication, notwithstanding the very general statement in paragraph 12, that at the time of the application the Minister did not have reasonable and probable grounds to believe that the seized documents were, or may have been required as evidence. He was, in effect, seeking more time in an attempt to ascertain if the relevant grounds existed. [Emphasis added]
Accordingly, I conclude that even if the original seizure had been valid, the retention order cannot stand. The application for the retention order was not made in good faith, was not for the purpose indicated in the affidavit in support of the application and there was not proper material before Judge Warrender to justify the granting of the retention order. There will accordingly be an order quashing the retention order.
Should the Documents and Copies be Returned?
The words of subsection 232(2) are mandatory. They require that the Minister shall return the documents within 120 days unless a valid retention order is made. Both counsel conceded that the cases establish that there is a discretion either to order the documents returned or in the alternative, notwithstanding the mandatory language of the section to allow the documents to be retained. It was argued on behalf of the respondent that the documents should not be returned for three reasons:
(a) The delay in bringing this application;
(b) The pending prosecution; and
(c) The ruling by the trial judge determining the admissibility of the documents, which should only be dealt with on appeal after the proceedings had been completed.
I will deal with these in order.
Delay
Over four years have passed since the seizure and the retention order. However, the applicants were justified in believing that the retention of the documents was only for the purpose of examining into the failure to remit and they were justified in not bringing an application or expending moneys on a pure technicality at that time.
The applicants have been aware since November 1981, “that the documents were being used for a much wider investigation than that which I (the applicants’ solicitor) was led to believe”. I am not able however to ascertain from the material before me whether the applicants knew that the intention had always been to conduct a much wider investigation and that the original seizure and application for retention order were guise for a “fishing expedition”. As far as I can determine from the material before me, it was not until October 1984 that they knew from the admission of Carolyn Davis that she had at all times intended to make a wide investigation.
I do not accept the other grounds set out in the affidavit material of Brian S Nichols, as being adequate justification for the delay. However, the evidence disclosed on October 30, 1984 indicates sufficient grounds to justify the applicants’ reassessing the situation and making the present application. This they did within one week. Delay, therefore, is not a bar to the relief sought.
Pending Proceedings
In the Usarco case, Morden, JA stated at 154 [6093]:
. . . The subsection is intended to provide for the return of seized documents in cases where no retention order is obtained within 120 days of the seizure. It is a natural and logical part of the statutory scheme. However, I do not think that the subsection extends to ousting the discretion of a court to refuse to order the Crown to return evidence to an accused person where there is evidence that it is required for a pending prosecution. A refusal to exercise such a discretion has been recently affirmed by this Court: Regina v Model Power (A Division of Master Miniatures Ltd), January 25, 1980. While such a discretion is one which should be exercised with great care, [Emphasis added] I am satisfied that, in the present case, it is the better course to refuse to order the return of the documents. As I have just indicated, the long delay of the applicant is a factor to be considered on this issue.
While the documents were not ordered to be returned in the Usarco case, I am ordering that the documents and all copies be returned in this case. The Usarco decision appears to have been an academic triumph for the applicants but the result was that the Hamilton Taxation Division had the benefit of the documents that they obtained through inappropriate procedures. The present case is somewhat different. The respondents have admitted that from the outset they were not interested in the failure to remit. They were not acting in good faith. Notwithstanding the Court’s findings in the Usarco case, they continued to operate in the same manner. The Usarco decision left them with the fruits of their improper conduct.
The documents should be returned. The Department cannot take away private rights and seize private property except in strict compliance with the legislation. They must comply not only with the requirements of the Act but with the spirit as well.
The Pending Proceedings
I am aware that this decision may to some extent influence the pending proceedings. Those proceedings however, are delayed for a lengthy period pending the Court of Appeal’s decision with regard to the prohibition application.
The case against the applicants may still be made out without the documents or copies thereof. In the alternative, there may be, in the course of the trial, submissions made to the trial judge with regard to the documents. I am making no finding whatsoever as to their admissibility. It would, in my view, not be appropriate at this stage, to review the trial judge’s decision in that regard. The trial judge stated, with regard to the order of Judge Warrender:
Frankly I do not believe that I can go behind that order . . .
Accordingly, it may be of assistance to him to have a determination of the issues that I have dealt with.
The Charter
The Canadian Charter of Rights and Freedoms being Part I of the Constitution Act, 1982 amended by the Constitution Amendment Proclamation, 1983 effective June 21, 1984, provides as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
In my view, it is not necessary to consider the Charter in this case, since the rights that were infringed and are sought to be protected have existed for hundreds of years at common law. If it had been necessary to consider the matter, I would have decided that the Charter was applicable. Of the 3,600 hours of investigation carried out by the respondent, a major portion of these hours are after the Charter came into force.
In argument before me, no attack was made on the validity of the various provisions of section 232, in light of the Charter, and accordingly, I have not considered the matter.
In the course of argument on the motion, I referred counsel to the case of Blackwoods Beverages Ltd, Beverage Services Ltd, and Coca-Cola Ltd v The Queen et al, a decision of the Court of Appeal of Manitoba released November 20, 1984. I asked counsel for their comments, since I felt that this decision might have some relevance to the present motion. In that case, the documents had been seized pursuant to section 10 of the Combines Investigations Act, RSC 1970, Chap C-23.
Section 10, under which the seizure made was held by the Supreme Court of Canada to be unconstitutional by virtue of the Charter in the Southam v Hunter case, 84 DTC 6467, confirming (1983), 147 DLR (3d) 420.
In the Blackwoods case, O’Sullivan, J A said at p 2 of his reasons:
The seizure of documents in this case was perfectly lawful, in my opinion. Sections 10(1) and 10(3) of the Combines Investigation Act (RSC 1970, chap C-23) did not become unconstitutional until the Charter came into force. The seizure occurred before that date. The continued detention of documents seized has been rendered unlawful by reason of the Charter but I do not see how that affects copies, notes or précis made while the seizure and detention were lawful.
In that case a prosecution was in process and the court refused to interfere with rulings made in the course of the trial, refusing even to consider the matter. The court ordered the documents seized returned. They refused to order the return of the copies and précis because they were made at a time when the seizure and detention were lawful.
Matas, JA states at 14:
The order to return the documents in Southam, supra, Was not overruled by the Supreme Court of Canada. Examples of cases where similar orders were made are found in Re Chapman and The Queen (1984), 12 CCC (3d) 1 (Ont CA) and in R v Taylor (1983), 25 Sask R 145 (Sask QB). Here, the order goes one step further in ordering the return of copies of the documents and any notes, précis or other descriptions of the documents. The extension is appropriate if the order for return is not to be illusory as far as protecting the rights of a claimant are concerned.
In the case at bar the Court of Queen’s Bench had jurisdiction to consider and decide the constitutionality of secs 10(1) and (3) of the Act. In view of the appellants’ acknowledgment that they would not proceed without the documents the court was in a position to consider and decide the result which could flow from its determination of the constitutional issue. A potentially protracted and costly proceeding would be brought to an end on the exercise of the court’s jurisdiction at this stage before the preliminary hearing has started.
I consider the following additional factors to have significance. The seized documents are the property of the companies and do not fall within the rubric of illegal substances, or stolen goods or goods liable to customs or excise duties (Manning, Rights, Freedoms and the Courts, p 278). The companies do not rely on circumstances other than those before the Court of Queen’s Bench to support their case; it is not the conduct of the appellants to which attention has to be directed but the legislation under which they acted (Southam, supra). And the Charter has revitalized and entrenched protective common law rights and earlier statutory provisions which had been derogated by the Act.
In my opinion, this is an appropriate case for the court, under the authority of either s 24(1) of the Charter or the inherent jurisdiction of the court, to have exercised its jurisdiction to make a constitutional declaration and follow that up with the necessary orders to halt the proceedings.
Retrospectivity:
Since the proclamation of the Charter a consistent line of authority has held that the substantive rights conferred by the Charter do not have retrospective or retroactive effect. For example: R v Belton, [1983] 2 WWR 472, 31 CR (3d) 223 (Man CA), R v Lee (1982), 17 MVR 173, 30 CR (3d) 395, 142 DLR (3d) 574 (Sask CA), Stuart v Attorney General of Canada (1982), 44 NR 320 (FCA).
The statement of Hoyt J in R v Davidson (1982), 29 CR (3d) 241, at pp 245-246 is apposite to the point before us:
. . . While the infringement of the accused’s right against unreasonable search or seizure, which must certainly occur when a search of a residence is made under a defective search warrant, occurs at the time of the act, in this case 10th March 1982, and while it is a very real infringement on that day, the infringement continues, in my view, until the things seized are returned to him. The taint continues on the things seized and is converted from an almost abstract infringement as of the date of seizure to a very real or practical infringement when the tainted articles are offered in evidence.
While established rules of statutory construction must be applied to construing the application of the Charter, I cannot think that artificial or tedious reasoning should be applied to thwart the remedial character of the Charter. To isolate the search and seizure of the articles from their tendering as evidence would be just that. . .”
In Chapman, supra, MacKinnon ACJO (Dubin and Tarnopolsky JJ A concurring), the court considered the jurisdiction to return objects seized under a search warrant which had been quashed. The learned trial judge had ordered the return of the articles. The Crown agreed that the quashing of the search warrant was proper but argued in the Court of Appeal that there was no discretion to order the return of any articles which the Crown alleged would be required as evidence in a criminal proceeding. MacKinnon ACJO said at pp 8-9:
“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, is not to 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.”
In R v Burnett et al (judgment delivered Oct 1, 1984, Ont SC TD), Hartt J considered the Crown’s submission on whether s 13 of the Charter applies to retrospectivity in proceedings conducted prior to the proclamation of the Charter, ie, to affidavits sworn prior to April 19, 1982. The learned trial judge said at p 24:
“. . . In my view retrospectivity is not in issue in this case. The protection afforded by section 13 is directed to the use of the evidence to incriminate the witness in the subsequent proceedings.
The defendant, Burnett, seeks to exercise his right now, in this trial, when the Charter is clearly in force. The fact that the evidence was given in proceedings held before the enactment of the Charter in no way prevents him from asserting the protection of section 13 at this time. In my view, Mr Burnett is clearly entitled to attempt to invoke section 13 of the Charter.”
To the same effect is Donald v Law Society of British Columbia, [1984] WCD 023 (BCCA).
In the case at bar, the documents were seized between 1977 and 1981. Proceedings were not begun against the companies until 1983, and the preliminary hearing has not been started. (As in Southam, supra, the authorization to search preceded the Charter.) It is the retention of the documents by the appellants and the use of the documents, although post Charter, which are important factors in this case. Principles expressed in the cases cited above and others referred to by the appellants, such as The Queen v Longtin (1983), 41 OR (2d) 545, 5 CCC (3d) 12, 147 DLR (3d) 604, are not applicable here. It would not be giving retrospective effect to s 8 of the Charter to provide a remedy to the companies for the continued infringement of their rights under the Charter.
The cases cited by Matas, JA, in my view, reinforce the decision that I have reached, that all of the documents and all copies and précis of the documents should be returned to the applicants. Accordingly, there will be a declaration that the seizure of the documents by Revenue Canada on November 4, 1979 and December 20, 1979 were illegal and without statutory authorization.
There will be an order quashing the retention order issued by Judge Warrender on the 28th day of March, 1980. There will be an order that the documents seized and all copies and precis thereof be immediately returned to the applicants.
Costs
The applicants have asked for costs on a solicitor and client basis in view of the violations of their rights. They have also asked that the costs be payable to the solicitors for the applicants without set-off of any claims that may be made against the applicants or any of them by the respondent.
While I have expressed strong views with regard to the conduct of the respondents, I do not feel that their behaviour justifies solicitor and client costs being awarded against them. The applicant shall have their costs of these proceedings on a party and party basis.