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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