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A-456-85
Gerlando Lagiorgia (Respondent) (Plaintiff) v.
The Queen and Honourable Perrin Beatty (Appellants) (Defendants)
A-245-85
Skis Rossignol Canada Ltée/Ltd. and Société de Distribution Rossignol du Canada Ltée (Appel- lants)
v.
Lawson A. W. Hunter, Director of Investigation and Research under the Combines Investigation Act and J. C. Thivierge, Deputy Director of Inves tigation and Research under the Combines Inves tigation Act,
and
A. Brantz, R. Annan and H. Lalonde in their quality of representatives of the Director of Inves tigation and Research under the Combines Inves tigation Act pursuant to section 10 of the Com bines Investigation Act (Respondents)
and
Attorney General for Canada (Mis -en-cause)
INDEXED AS: LAGIORG/A V. CANADA
Court of Appeal, Hugessen, MacGuigan and Lacombe JJ.—Montréal, May 12 and 13, 1987.
Constitutional law — Charter of Rights — Criminal pro cess — Search or seizure — Disposition of documents illegally seized under Income Tax Act and Combines Investigation Act where required for pending criminal prosecution — Appeals from Trial Division judgments ordering return of documents — Property seized in violation of Charter s. 8 — Question to be answered by reference to Charter ss. 8 and 24(1) — Court not concerned with exclusion or admissibility of evidence under Charter s. 24(2) in context of pending criminal prosecu tion — Ordering immediate return of seized property to right ful owner appropriate remedy for illegal seizure — Anything less negates right and denies remedy — For remedy to be effective, order must extend to copies and extracts — Simple assertion things seized needed for prosecution not sufficient to allow Crown to profit from Charter-barred seizure — Court not addressing question of re-seizure of documents or use of documents or information contained therein as evidence — Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 8, 24(1),(2).
Income tax — Seizures — Searches and seizures under Act s. 231(4) in violation of Charter s. 8 — Trial Division ordering immediate return of seized documents to owner — Appeal by Crown, seeking to be exempted from returning documents required for pending criminal prosecution — Respondent cross-appealing, seeking to have order extended to all copies or extracts of seized documents — Crown appeal dismissed — Cross-appeal allowed — For remedy to be effective, order must extend to extracts and copies — Income Tax Act, S.C. 1970-71-72, c. 63, s. 231(4).
Combines — Searches and seizures under Act s. 10 in violation of Charter s. 8 — Trial Division ordering return of all seized documents and all extracts and copies thereof, except those necessary for criminal prosecution — Appeal — Crown ordered to return all extracts and copies immediately — Combines Investigation Act, R.S.C. 1970, c. C-23, s. 10(1),(3).
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Re Dobney Foundry Ltd. v. A.G. Can., [1985] 3 W.W.R. 626; [1985] 19 C.C.C. (3d) 465 (B.C.C.A.); Re Mandel et al. and The Queen, [1986] 25 C.C.C. (3d) 461 (Ont.
H.C.). APPLIED:
Re Chapman and the Queen (1984), 46 O.R. (2d) 65; 9 D.L.R. (4th) 244; [1984] 12 C.C.C. (3d) 1 (C.A.); Lefebvre v. Morin, judgment dated February 4, 1985, Quebec Court of Appeal, No. 200-10-000-174-83, digest ed at J.E. 85-366.
REFERRED TO:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535 (C.A.).
COUNSEL:
A-456-85
Guy Du Pont and Basile Angelopoulos for
respondent (plaintiff).
Robert Marchi for appellants (defendants).
A-245-85
Bruno J. Pateras, Q.C. for appellants.
James L. Brunton for respondents and
mis -en-cause.
SOLICITORS:
A-456-85
Verchère, Noël & Eddy, Montréal, for
respondent (plaintiff).
Federal Department of Justice, Montréal, for
appellants (defendants).
A-245-85
Pateras & Iezzoni, Montréal, for appellants.
Federal Department of Justice, Montréal, for respondents and mis -en-cause.
The following are the reasons for judgment delivered orally in English by
HUGESSEN J.: These appeals raise but a single issue, which may be starkly stated:
May the Crown require that property seized in violation of section 8 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] not be returned to the subject who was legally in possession of it at the time of such seizure?
In Court file A-456-85, the Crown, acting under the provisions of subsection 231(4) of the Income Tax Act [R.S.C. 1952, chap. 148 (as am. by S.C. 1970-71-72, c. 63, s. 1)] as it then read (8 July 1982), seized a quantity of books and papers belonging to respondent Lagiorgia. The latter brought proceedings in the Trial Division to have the seizure set aside and the seized documents returned to him. By the judgment appealed from [[1985] 1 F.C. 438], Joyal J. granted the relief sought. The Crown appeals, seeking to be exempt ed from returning certain of the documents which it says are required in connection with a pending criminal prosecution. The respondent cross-appeals and seeks to extend the order to all copies or
extracts of the seized documents as well as to restrain the Crown from making any use of the information obtained from them.
In Court file A-245-85 (Skis Rossignol Canada Ltée/Ltd.), the seizure was carried out under the then (23 August 1982) provisions of subsections 10(1) and 10(3) of the Combines Investigation Act [R.S.C. 1970, c. C-23]. Denault J. [[19851 1 F.C. 162], while allowing an application by the appel lants to have the seizures set aside, permitted the Crown to retain possession of copies of documents said to be required for a pending prosecution; it is this latter aspect of his order which the appellants put in issue before us.
It is common ground that both seizures were properly found to be illegal as being based upon statutory provisions which failed to meet the test of section 8 of the Charter. That is the unavoid able consequence of the decisions of the Supreme Court in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, and of this Court in Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535. It is also not disputed that the Crown was in good faith when it carried out the seizures, which were based on what were thought at the time to be valid statutory provisions. Finally, there can be little question that the material seized would be useful to the Crown in its pending prosecutions.
In our view, the question posed by these appeals falls to be answered by reference solely to section 8 and subsection 24(1) of the Charter. We are in no way concerned with the exclusion or admissibility of evidence, a matter dealt with in subsection 24(2) and over which, in the context of the pend ing criminal prosecutions, this Court would have no jurisdiction.
Section 8 protects rights of privacy and property against "unreasonable" State intrusion. The balancing of public versus private interests takes place at the time that it is determined whether or not any given search or seizure is in breach of the
section. That determination has already taken place and is no longer in issue here.
Subsection 24(1) mandates the Court to grant a remedy for the breach of any Charter right. While there can be no doubt that there is a vast discre tion in the words
24. (1) ... such remedy as the court considers appropriate and just in the circumstances.
we think that it is a discretion to fashion a remedy, not to deny it altogether,
In our view, it would be difficult to think of any more appropriate remedy for the unreasonable and therefore illegal seizure of property than to order its immediate return to its rightful owner and lawful possessor. Anything less negates the right and denies the remedy. The only circumstances which suggest themselves to us as justifying a court in refusing such an order would be where the initial possession by the person from whom the things were seized was itself illicit, e.g. in the case of prohibited drugs or weapons. While there may be other cases, there can be no doubt in our minds that when the Crown seeks, as in effect it does here, to profit from a Charter-barred seizure it bears a very heavy burden indeed (see Re Chap- man and the Queen (1984), 46 O.R. (2d) 65; 9 D.L.R. (4th) 244; [ 1984] 12 C.C.C. (3d) 1 (C.A.); Lefebvre v. Morin, No. 200-10-000-174-83, Que. C.A., 4 February 1985, digested at J.E. 85-366). With due respect to those who appear to hold the opposite view (Re Dobney Foundry Ltd. v. A.G. Can., [1985] 3 W.W.R. 626; [1985] 19 C.C.C. (3d) 465 (B.C.C.A.); Re Mandel et al. and The Queen, [1986] 25 C.C.C. (3d) 461 (Ont. H.C.)), we do not think that burden can be satisfied today by a simple assertion that the things seized are needed for a prosecution.
It is common ground here that the Charter, the supreme law of the land, has been breached. We cannot read subsection 24(1) as giving a discretion to hold that such breach may be overlooked in
order to facilitate a simple prosecution for tax evasion or price maintenance.
We emphasize once again that our decision today deals only with the appropriate civil remedy for the acknowledged invasion of Charter-guaran teed rights. Nothing we say should be read as bearing in any way on whether the Crown can or should be allowed to re-seize the subject docu ments or to use them or the information they contain as evidence.
Accordingly, in file A-456-85, Lagiorgia, the appeal will be dismissed with costs. As to the cross-appeal, counsel at the hearing abandoned the request for a restraining order and there remains only the question of extracts or copies of the seized documents. The Trial Judge's failure to mention them appears to us to be a simple oversight; cer tainly, if the remedy he granted is to be effective, it must extend to them as well. The retention of unauthorized copies or extracts is as much an invasion of privacy and property as is the original seizure. The cross-appeal will therefore be allowed so as to modify the Trial Judge's order by extend ing it to cover all copies or extracts made from the seized documents. Since the Crown resisted the cross-appeal, the respondent cross-appellant is en titled to his costs thereon.
In file A-245-85, the appeal will be allowed with costs and the order of the Trial Judge will be varied by deleting that part which allows the Crown to retain certain documents for the pur poses of prosecution. The Trial Judge also, without giving reasons, awarded costs in favour of the Crown; since the record discloses no ground upon which costs could properly have been awarded against the successful plaintiffs, the order will also be varied so as to grant them their costs in the Trial Division.
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