Halvorson J.: — The applicants seek relief from the continued detention of their financial records by the Minister of National Revenue.
On June 27, 1995, the Minister seized all the applicants’ records pursuant to a search warrant. The records were detained by subsequent orders under Criminal Code, subsection 490(1) made on September 11 and December 8. As the one-year limit to detention was approaching, the Minister applied to this Court on March 26, 1996 for a continuance under subsection 490(3)(A). By fiat dated April 9, 1996, Laing J. Refused to continue the detention beyond the one year, to expire June 26, the Minister achieved further detention under Code subsection 490(3)(B) and section 490, without the necessity of court approval, by laying criminal charges against the applicants.
The applicants cry foul, and for good reason. It is evident from the court file that the applicants are suffering severe prejudice in the operation of their farm implement dealership, without business records. This was recognized by Laing J. In his fiat, and as well, by the Provincial Court judges, who granted the limited extensions on September 11 and December
8. Now, by commencing a prosecution, the Minister can seemingly, retain the seized documents indefinitely. In this respect, subsection 490(3)(B) and subsection 490(9) provide:
490(3) More than one order for further detention may be made under paragraph (2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure unless before the expiration of that year,
(b) proceedings are instituted in which the thing detained may be required.
490(9) Subject to this or any other Act of Parliament, if
(a) a judge referred to in subsection (7), where a judge ordered the detention
of anything seized under subsection (3), or (b) a justice, in other case
is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall
(c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person; or
(d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession,
and he may, if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.
[Emphasis added. ]
To the applicants, the swearing of the information on behalf of the Minister is merely a device to circumvent the order of Laing J. And maintain possession of the documents. If this were so, the words “perjury” and “malicious prosecution” come to mind.
It is noteworthy that the investigation of the applicants by the Minister centered largely on questionable investment tax credits. Apparently, dates of delivery of equipment were a critical issue. Some time a ago, counsel for the applicants proposed that a point of law on this issue be placed before this Court for determination. The file does not disclose a response from the Minister. If it transpires during the course of prosecution that counsel is correct, and the problem is essentially a civil dispute lacking a criminal intent, the Minister may anticipate a punitive order of solicitorclient costs.
The Minister has complained to the courts on three occasions that he needs more time to assess the seized material because of the volume. Laing J. Was not impressed. Obviously, with the resources of Canada, the Minister could have assigned more employees to this project. If he failed to do so, it is not for the applicants to bear the consequences.
Before me there is a motion by the applicants for an order under subsection 490(7) directing the Minister to return the sized records. This motion was launched following the expiration of the one-year limit ending June 26, but before the applicants were aware of the charges laid that same day. Counsel for the Minister cites the decision in R. v. Church of Scientology of Toronto (1991), 63 C.C.C. (3d) 328, 49 O.A.C. 13 in support of his argument that the institution of the prosecution forecloses the applicant’s right to recover the documents.
Considering all these circumstances, the Court should aim to accommodate the needs of each faction to the extent possible. The Minister should be hampered in his prosecution. As well, the applicants should not be unduly prejudiced in the operation of their business over the next few years while the case progresses through the system. These aims are attainable. Code subsections 490(13) and (14) contemplate this very situation by allowing the Minister to copy the documentation and use these copies in court. The sections read:
(13) Where any document is returned or ordered to be returned, forfeited or otherwise dealt with under subsection (1), (9) or (11), the Attorney General may, before returning the document or complying with the order, make or cause to be made, and may retain, a copy of the document.
(14) Every copy made under subsection (13) shall, if certified as a true copy by the Attorney General, be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the original document would have if it had been proved in the ordinary way.
[Emphasis added.]
In the past, the Minister has acceded to the applicants’ request for copies of the seized materials, but that which was supplied has proven unhelpful due to the lack of correlation. Apart from inconvenience, there is no reason why the Minister should not make his own copies of the records and return the originals to the applicants. This will be a timeconsuming exercise, but it is the price to be paid to meet the needs of both sides.
There will be an order directing the Minister to return the original seized documents to the applicants before August 31, 1996. In the meantime, with all his resources, the Minister can reproduce copies for himself.
Application allowed.