English version of the judgment delivered by
THE COURT—These reasons are in support of a judgment rendered from the Bench on May 14, 1987.
Pursuant to an information laid by an official of the Ministère du revenu of Quebec asserting that appellant, the Restaurant Le Clémenceau Inc., had contravened the Act respecting the Ministère du revenu, R.S.Q. 1977, c. M-31, the officers of that department searched the appellant's premises. They had previously obtained authorization from the Deputy Minister of Revenue and, as required by s. 40 of the Act, authorization from a judge of the Court of the Sessions of the Peace to make this search.
The appellant filed a motion for a writ of evocation in the Superior Court pursuant to art. 846 of the Code of Civil Procedure to challenge the decision of the judge of the Court of the Sessions of the Peace authorizing the search. The appellant argued that the information was too vague and s. 40 of the Act unconstitutional. The Superior Court denied the writ and the majority in the Court of Appeal affirmed this judgment.
Section 40 of the Act respecting the Ministère du revenu requires judicial intervention before an official is allowed to exercise the powers of search and seizure mentioned therein. It reads as follows:
40. (1) With the approval of a judge of the Sessions which may be granted on demand ex parte following an information made under oath, the Minister may, for all purposes respecting the application of a fiscal law, authorize in writing any functionary of the Ministère du revenu or any other person whom he designates, and any peace officer whom such officer or person calls to his aid, to enter and search, by force, if need be, any building, receptacle or place to seek therein for docu-
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ments, books, registers, papers or other things that may be used as evidence of an offence against a fiscal law or a regulation made by the Gouvernement under such law, to seize and remove such documents, books, registers, papers or other things and keep them until they have been produced in judicial proceedings.
(2) The search contemplated in subsection I shall not be made before seven hours or after twenty hours, or on a non-juridical day, except under written authorization of the judge who approved it.
(2) The search contemplated in subsection I shall not be made before seven hours or after twenty hours, or on a non-juridical day, except under written authorization of the judge who approved it.
(3) The Minister shall, upon request, allow the examination of any document, book, register, paper or other thing seized, by its owner or the person in whose hands it was at the time of the seizure.
The supervision exercised by the judge of the Court of the Sessions of the Peace over the administrative decision in these circumstances is a judicial function. Accordingly, the judge must look with the greatest care at the exercise of the ministerial discretionary power (see Goodman v. Rompkey, [1982] 1 S.C.R. 589; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495, on the federal Income Tax Act). In order to do this, he must know all the facts necessary for him to make an informed decision and to exercise genuine supervision.
In M.N.R. v. Paroian, [1980] C.T.C. 131, at p. 138, Morden J.A. of the Ontario Court of Appeal states the same rule in connection with the federal Income Tax Act :
The function of the judge is the most important safeguard. It is implicit in the provision that the judge is not to act as a rubber stamp. "The judge sits to scrutinize (with utmost care) the intended exercise of ministerial discretion." MNR v. Coopers and Lybrand, supra, at 506. He has a duty to consider the cogency of the evidence put before him in determining what facts it "establishes". He surely has a discretion, in a proper case, to withhold his approval, if he considers that the facts do not justify it.
In the case at bar the judge of the Court of the Sessions of the Peace had before him only an information in which the official stated that he believed that the appellant had made false or misleading returns for August 1977, in that it had failed to include the sum of $299.20 tax collected.
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He further asserted that this belief was reasonable and rested on an investigation he had undertaken, though he did not disclose its nature, and during which he had discovered certain facts. In order to perform his duty of supervision, the judge had to determine whether the facts on which the informant's belief was based were such that his belief was indeed reasonable. None of these facts are disclosed by the information. The judge then had a duty to ask for further information, which he elected not to do. In the case at bar, in view of what was before the judge, he could not and in fact did not verify the reasonableness of the informant's belief and his approval of the warrant accordingly at once gives rise to a writ of evocation.
These are the reasons for which the Court allowed the appeal, and set aside the judgments of the Court of Appeal and the Superior Court.
It is ordered that the writ of evocation be issued and, proceeding on the merits by consent of the parties.
The Court declares the warrant, the search and the seizure to be null and void and unlawful and quashes the search warrant authorized by the defendant judge.
The Court orders that all the effects seized and any copies that may have been made of these effects since the search be returned.
The whole with costs throughout. However, no costs will be awarded for or against the interveners.
Appeal allowed with costs.
Solicitors for the appellant: Gauthier, Nepveu & Leblanc, Sept-Îles.
Solicitors for the respondent and the mis en cause: Ouellette, Desruisseaux, Veillette, Montréal.
Solicitor for the intervener the Attorney General of Canada: F. Iacobucci, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Daniel Jacoby, Ste-Foy.
Solicitor for the intervener the Attorney General for Ontario: Richard F. Chaloner, Toronto.
Footnotes
- [1] S.C. Mingan, No. 650-05-000244-823, February 17, 1983.
Cases cited
- Goodman v. Rompkey et al. 16717-1982-05-10
- Minister of National Revenue v. Coopers and Lybrand item-2608-1978-11-21
- MNR v. Coopers and Lybrand MNR v. Coopers and Lybrand, supra, at 506 506
Statutes and regulations cited
-
Unresolved citations
- s. 40
- Section 40