T-1998-81
Thyssen Canada Limited (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Toronto, November 22;
Ottawa, December 2, 1983.
Constitutional law — Charter of Rights — Enforcement of
rights guaranteed by Charter — S. 24 motion for order
requiring return of copies of letter and enjoining its use at trial
— Letter photocopied by taxation auditing officer at plain
tiffs premises — Officer not disclosing letter copied to gain
litigation advantage — Officer at most guilty of "dirty trick"
— American-style "suppression hearings" not recognized in
Canada — Situation not altered by Charter — Letter obtained
before adoption of Charter — Charter not having retroactive
effect — Argument that Crown's refusal to return letter con
stituting continuing Charter breach rejected — Ontario deci
sions on point preferred over R. v. Davidson (1982), 40 N.B.R.
(2d) 702 (Q.B.) — S. 8 of Charter inapplicable as copying of
letter not unreasonable search or seizure — Admission of
letter in evidence not bringing justice administration into
disrepute — Motion dismissed — 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.
Evidence — Admissibility — Motion for order excluding
based on Charter s. 24 — Whether Court having jurisdiction
to grant relief sought — American "suppression hearings" not
recognized in Canada — Charter not changing this — Court
having power under R. 474 to declare evidence admissible —
In particular case, justice served by considering Charter argu
ment — Evidence obtained before Charter adopted — Charter
not retroactive — That Crown holding document as evidence
not constituting continuing breach of Charter — Ontario cases
on point preferred over New Brunswick case cited by plaintiff
— S. 8 of Charter inapplicable, document not having been
obtained by unreasonable search or seizure — Admission of
document in evidence not bringing administration of justice
into disrepute — Canadian courts having discretion to admit
even illegally obtained 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 —
Federal Court Rules, C.R.C., c. 663, R. 474 (as am. by
SOR/79-57, s. 14).
Practice — Motion for order excluding evidence as obtained
in contravention of Charter — Whether order sought really
declaratory relief unobtainable in interlocutory proceeding —
Federal Court Rules not altered by Charter — Not appropri
ate case to apply R. 327 or 474 — Court not wishing to create
precedent of general application but in interest of justice in
particular case to consider Charter argument by exercising
Court's inherent jurisdiction over its process — Federal Court
Rules, C.R.C., c. 663, RR. 327, 474 (as am. by SOR/79-57, s.
14) — Canadian Charter of Rights and Freedoms, being Part 1
of the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 24.
Income tax — Income calculation — Deductions — Tax
payer treating late-payment charges as interest and grossing
up payments to reflect withholding tax — Department of
National Revenue auditing taxpayer — Auditing officer
photocopying letter without taxpayer's knowledge — Hoping
to take taxpayer by surprise and further defence of assess
ments — S. 231 of Act giving wide authority for examination
of records in tax audit — Official at most guilty of "dirty
trick" — No illegal search or seizure — Evidence admissible
— Income Tax Act, S.C. 1970-71-72, c. 63, s. 231.
In 1980 and 1981, G, an officer of the Department of
National Revenue, was conducting an audit of the plaintiff
with respect to certain taxation years ("the audit period"). He
was doing this at the plaintiff's premises, and with the plain
tiff's full cooperation. He obtained from the plaintiff permis
sion to examine its books and records, which, according to G's
understanding, included correspondence relating to the plain
tiff's financial affairs. In the room in which G was working,
and in full view, there were a number of binders that held
correspondence of this sort. One of them contained a copy of a
letter from the plaintiff to its German parent. This letter bore a
date within the audit period, but referred to the manner in
which certain payments from the plaintiff to the parent had
been treated in the years immediately preceding the audit
period ("the earlier years").
The action to which the present motion pertained was an
appeal from assessments for the earlier years, and an issue was
how the foregoing payments should have been dealt with by the
plaintiff for tax purposes. G was aware at the time of the audit
that the returns for the earlier years were in dispute. Without
informing the plaintiff that he had discovered the letter, he
photocopied it on facilities to which the plaintiff had given him
access. In due course, he arranged to have a photocopy placed
in the Department's file for the earlier years. He did not wish to
draw the letter to the plaintiff's attention when he obtained it,
for he thought that other departmental officials could do so at
some later, appropriate time, surprising the plaintiff and there
by increasing the Department's chances of successfully defend
ing its assessments.
In this motion, the plaintiff sought an order under section 24
of the Charter, requiring the defendant to return all copies of
the letter in its possession, expunging the letter from the record,
and enjoining the defendant from producing the letter at trial.
Held, the motion is dismissed.
It is conceded that if there had been any objection to the
performing of the audit, authority therefor could have been
obtained under section 231 of the Income Tax Act. The fact
that an audit is performed with the permission and assistance of
the taxpayer does not entail restrictions as to the nature of the
records which may be examined or copied. Furthermore, there
is no doubt that once the letter had been discovered by G, it
could have been obtained by some means other than that
actually employed, and could subsequently have been used in
the proceedings.
As it is, there is no question of there having been an illegal
search or seizure. Indeed, the letter at issue was not taken but
merely photocopied. In declining to inform the plaintiff that he
had discovered a potentially damaging letter, with the hope
that the plaintiff would later be taken by surprise, G was the
perpetrator of what could be characterized as, at worst, a "dirty
trick".
In any event, the importance of the letter is open to doubt.
The approach adopted by the plaintiff towards the payments in
preparing its returns for the earlier years is apparent from those
returns, and cannot be altered by any subsequent admissions,
recommendations or changes in practice. Even if the letter to
the parent company contained an admission that the practice
followed in the earlier years was erroneous, that admission
would not be binding upon the Court, which is required to
determine simply whether the approach adopted was correct.
The only issue on this motion is one relating to the admissi
bility of a specific piece of evidence. The defendant maintains
that the admissibility of evidence is a matter which should be
left for the trial judge to decide, and that the Court therefore
lacks jurisdiction to grant the order sought. There is consider
able force to this argument. Even with the advent of the
Charter, American-style "suppression hearings" have not been
accepted in Canadian law. The defendant also contends that
what the motion seeks is, in essence, declaratory relief, that
such relief cannot be granted in an interlocutory proceeding,
and that this latter principle has not been altered by subsection
24(1) of the Charter.
Nonetheless, given the facts of this particular case, and given
that the issue has been very completely argued, it is in the
interests of justice for the Court to deal with the question of
whether relief under the Charter is called for. It would not be
appropriate to have recourse either to Rule 327 or to Rule 474
as authority for addressing the issue; however, it is appropriate
to invoke the Court's inherent jurisdiction to administer its own
process, although this step should not be construed as a gener
ally applicable precedent for considering the admissibility of
particular evidence in advance of trial.
The plaintiff simply cannot avail itself of the Charter. The
Charter came into force only after G had performed the audit
and obtained the copy of the letter, and does not have retro
spective effect. While the plaintiff argues that the defendant's
retention of the document constitutes a continuing breach of
the Charter, the weight of authority is in favour of the conclu
sion that the rule of non-retroactivity does apply on the facts of
the instant case.
Even if the Charter could be applied, the plaintiffs attempt
to invoke section 24 would fail on its merits. Presumably this
attempt would involve placing reliance upon section 8 of the
Charter (unreasonable search or seizure). There was, however,
no formal search or seizure. An unconcealed letter was simply
found in the course of an audit conducted with the plaintiffs
permission. Although the motives underlying G's conduct may
not have been commendable, the "search" was not thereby
rendered unreasonable (or illegal); and even if G's conduct had
amounted to an infringement, the case would be one in which
subsection 24(2) should be applied against the exclusion of the
letter, since admission of it as evidence would not bring the
administration of justice into disrepute. The plaintiff is in no
danger of being accused of a crime, and nothing either in G's
actions or in allowing the letter to form part of the record
constitutes conduct that would "shock the community" (per
Lamer J. in Rothman) and that is therefore worthy of
suppression.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Clarkson Company Limited v. The Queen, [1978] 1
F.C. 481 (T.D.); Re Regina and Potma (1982), 37 O.R.
(2d) 189 (H.C.); Regina v. Shea (1982), 38 O.R. (2d)
582 (H.C.); Regina v. Longtin (1983), 41 O.R. (2d) 545
(C.A.); R. v. Esau (1983), 20 Man. R. (2d) 230 (C.A.);
Regina v. Collins (1983), 5 C.C.C. (3d) 141; 33 C.R.
(3d) 130 (B.C.C.A.); Rothman v. Her Majesty The
Queen, [1981] I S.C.R. 640; 59 C.C.C. (2d) 30.
NOT FOLLOWED:
R. v. Davidson (1982), 40 N.B.R. (2d) 702; 105 A.P.R.
702 (Q.B.).
CONSIDERED:
Regina v. Siegel (1982), 39 O.R. (2d) 337 (H.C.); Food-
corp Limited v. Hardee's Food Systems, Inc., [1982] 1
F.C. 821 (C.A.); Canadian Javelin Ltd. v. Sparling et al.
(1981), 60 C.P.R. (2d) 220 (F.C.T.D.); Her Majesty The
Queen v. Wray, [1971] S.C.R. 272; Lawrie v. Muir,
[1950] S.C. (J.) 19.
REFERRED TO:
Banks, et al. v. The Queen, order dated May 13, 1983,
Federal Court—Trial Division, T-1110-83, not yet
reported.
COUNSEL:
T. A. Sweeney for plaintiff.
L. P. Chambers, Q.C. and G. P. Jorré for
defendant.
SOLICITORS:
Borden & Elliott, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
WALSH J.: This is a motion dated the 9th day of
August, 1983 on behalf of the plaintiff, for an
order pursuant to section 24 of [the Canadian
Charter of Rights and Freedoms, being] Part I of
the Constitution Act, 1982 [Schedule B of the
Canada Act 1982, 1982, c. 11 (U.K.)] requiring
the defendant to return all copies in its possession
and expunging from the record and enjoining the
defendant from producing at trial, a letter of the
plaintiff, dated September 1, 1976, sent to its
parent company in Germany, or for such other
order as this honourable Court may deem just.
In order to understand the significance of the
letter in question it is necessary to resume the facts
in this case. Jeno Gal, an auditing officer of the
Department of National Revenue was auditing
plaintiff's records for its 1976, 1977 and 1978
taxation years, as a result of which he spent about
fifty working days between June 2, 1980 and
March 1981 in plaintiff's premises. The present
appeal does not relate to those years but to assess
ments for its 1973, 1974 and 1975 taxation years.
Plaintiff is a wholly-owned subsidiary of a German
parent corporation from which it purchased fab
ricated steel for resale at arm's length to customers
in Canada and elsewhere. Late-payment charges
were levied by the German parent against plaintiff
and plaintiff for its part imposed late-payment
charges against each customer which it treated as
interest. When late-payment charges were levied
against it by its parent it included an interest
element in the sales price of the sale products sold
to its customers. It will be plaintiffs contention
when the action comes to trial that it was in error
when it treated the late-payment charges levied
against it as interest and grossed up these pay
ments to reflect Canadian withholding tax. Inter
est deductions of over $1,000,000 were disallowed
during the 1973 to 1975 taxation years. As a result
plaintiff will contend that the parent company,
which does not have an establishment in Canada,
and plaintiff have been subjected to double taxa
tion in that the parent company paid German tax
on'` the late-payment charges charged to plaintiff
while plaintiff has been denied a deduction with
respect to the same amounts in Canada.
It is conceded that during his audit Mr. Gal
received full cooperation from Mr. Johan Vos, the
Vice-President for Finance of the plaintiff. He
sought permission to examine plaintiff's books and
records which he understood to include corre
spondence relating to plaintiffs financial affairs
and Mr. Vos did not limit his access to mere
bookkeeping records such as journals, ledgers and
vouchers. He was shown two rooms in which some
of the books and records were kept and was
assigned a desk in one of them where he could
work undisturbed and invited to ask Mr. Vos or his
staff for any further assistance required. The room
in which he was working was unoccupied save for
him and contained non-current posting vouchers,
cancelled cheques, and outgoing correspondence of
plaintiff relating to its financial matters which
were kept in hard-covered binders with pull-apart
rings in full view on a shelf in the room. Among
them was a carbon copy of plaintiffs letter to the
German parent company dated September 1,
1976, which referred to the company's practice in
treating these payments in the earlier years under
dispute in the present action. Mr. Gal stated in his
affidavit on which he was cross-examined that he
was aware that plaintiffs 1973, 1974 and 1975
taxation years were under objection and one of the
objects of his audit was to ascertain whether plain
tiff had made similar interest payments on its
overdue trade debts to specified non-residents in
the 1976, 1977 and 1978 taxation years as well.
Mr. Vos also gave Mr. Gal permission of the use
of plaintiffs photostating facilities for the purpose
of making copies of portions of plaintiff's books
and records. While Mr. Gal denied when cross-
examined on his affidavit that this permission was
subject to any proviso, Mr. Vos in cross-examina
tion on his affidavit states that he wanted to know
what was going to be copied as he was trying to
restrict his staff from copying too much and out
side auditors are easy about photocopying. It
appears that what he was concerned with however
was the cost of making the copies, which are not
billed to the Department of National Revenue.
According to his evidence, while Mr. Gal showed
him some of the documents he had photocopied he
did not show them all. Some of Mr. Vos' staff
assisted in the photocopying from time to time.
In due course Mr. Gal arranged to have a
photocopy of this letter placed in the file of the
Department of National Revenue for the 1973,
1974 and 1975 taxation years, with a covering
memorandum stating that he had obtained it
"without the plaintiff's knowledge". It is contend
ed that by this Mr. Gal merely meant that he had
not drawn it to plaintiff's specific attention at the
time he obtained it, but that this comment is not
an indication that he had obtained it without
plaintiff's permission.
Mr. Gal, apparently a diligent employee of the
Department of National Revenue, did not wish to
draw the letter to Mr. Vos' attention at the time,
intending that the appeal officers of the Depart
ment of National Revenue (Taxation) could do so
at an appropriate time so that plaintiff would
therefore be surprised by it, which he thought
would further the Department's chances of defend
ing the assessments. According to his testimony in
his examination he also wished at the time to avoid
raising a possible controversy with Mr. Vos
regarding the issue of deductibility of interest
charges. He also states that he does not make a
practice of giving the party being audited a com
plete list of all the documents which he has
photocopied. Mr. Vos in cross-examination on his
affidavit conceded that had Mr. Gal shown him
the letter at the time he would not have objected to
the production of it but would have discussed it
and tried to explain it to Mr. Gal, and perhaps had
a meeting with his accountants. He stated that
once Mr. Gal had the letter in his hands he knew
he had a right to it and could not object to it
anymore. It is conceded that section 231 of the
Income Tax Act [R.S.C. 1952, c. 148, as am. by
S.C. 1970-71-72, c. 63] gives wide authority for
the examination of books and records of the tax-
payer being audited and that, if there had been
any objection to the audit, authority could have
been obtained under that section. The fact that the
audit was performed with the permission and
assistance of the taxpayer would not in my view
limit the nature of the records which could be
examined or which could be copied. There is no
issue here of an illegal search or seizure and the
original letter was not taken but merely photo
copied.
At most it can be said that Mr. Jeno Gal was
guilty of a "dirty trick" in not specifically calling
to the attention of Mr. Vos that he had found a
letter during the course of his audit for the 1976,
1977 and 1978 taxation years which, if produced
in the litigation now before the Court with respect
to the 1973, 1974 and 1975 taxation years, might
be damaging to plaintiff's case in those years, and
by so doing hoping to take plaintiff by surprise
when it was produced in the said proceedings.
There is no doubt that once he had seen it the
letter could have been obtained and used in the
proceedings by other means, and in fact there is
some doubt in my mind as to the importance of the
letter in any event. The manner in which plaintiff
treated these payments in its 1973, 1974 and 1975
taxation returns appears from those returns and
any admissions made thereafter or recommenda
tions in a letter to the parent company, or any
change in practice in the subsequent years, if this
was the case, cannot alter that. Even an admission
in such a letter that the practice was erroneous, if
in fact such an admission were made, would not be
binding on the Court hearing the case on the
merits which must merely determine whether the
practice adopted in the years under litigation was
correct or not.
I turn now to the law and jurisprudence which
was argued at some length both orally and by
written submissions by counsel for both parties.
The first argument and one which would be deci
sive if it were adopted is that the Court has no
jurisdiction to grant the relief sought in the present
motion in that it relates to admissibility of evi
dence which is a matter which should be left for
the trial judge. There is considerable force to this
argument and in fact what are sometimes referred
to in the United States as "suppression hearings"
are not recognized in Canada, and the Charter of
Rights has not changed this. For example, in the
case of Regina v. Siegel' O'Driscoll J. stated at
page 342:
The Courts of Great Britain have always shunned any proce
dure which sought a ruling upon the admissibility of evidence
at a time prior to the moment of tendering the evidence.
and again at page 343:
... prior to the Charter, Canadian courts have refused to make
rulings on admissibility of evidence in advance of the tendering
of the evidence at the trial; the Canadian courts have always
held that the judge at the preliminary hearing and the judge at
trial had the right and the duty to determine admissibility.
This was a criminal matter however and the
applicability of section 24 of the Charter was
considered in this light.
Moreover defendant further argues that the
order sought in the motion is in essence one for
declaratory relief which cannot be given in an
interlocutory proceeding and that subsection 24(1)
of the Canadian Charter of Rights and Freedoms
does not change this principle nor does it alter the
procedures set out in the rules governing the Fed
eral Court of Canada or any other Court of com
petent jurisdiction (see Banks, et al. v. The
Queen 2 ).
On the other hand, plaintiff stresses the desira
bility of having this issue determined at an early
stage of the proceedings, contending that the
Court is a court of competent jurisdiction to make
this determination on this motion in accordance
with its inherent jurisdiction to administer its own
process. It is contended that the issue has now
been fully argued at great length on this motion
and it is not in the interest of the Court to merely
leave the matter for determination of the trial
judge at that stage since unless defendant should
decide not to seek to introduce the said letter in
evidence, it will have to be argued again on the
same basis with the result of delaying the conduct
of the trial. There was some suggestion that the
matter might be determined as a preliminary
determination of a question of law on admissibility
' (1982), 39 O.R. (2d) 337 (H.C.).
2 Order of Collier J. dated May 13, 1983, Federal Court—
Trial Division, T-1 110-83, not yet reported.
pursuant to Rule 474 or Rule 327 of the Rules of
this Court [Federal Court Rules, C.R.C., c. 663].
After consideration of the jurisprudence however I
have reached the conclusion that this would not be
an appropriate case in which to apply Rule 474. Its
use was dealt with in the case of Foodcorp Limited
v. Hardee's Food Systems, Inc., 3 in which Heald
J., rendering the judgment of the Court of Appeal,
points out at page 825 that Rule 474 empowers the
Court upon application to declare certain evidence
admissible, but in the case before him it was
common ground that no such application had been
made. In the case before him he had found that
the material was clearly inadmissible in any event,
and moreover it dealt with section 59 of the Trade
Marks Act [R.S.C. 1970, c. T-10] in an expunge -
ment matter in which procedure is specifically set
out in Rule 704 of the Rules of this Court. He
concluded therefore that the admissibility or
non-admissibility of the material would normally
be a matter for the judge hearing the expungement
proceeding and should not be dealt with in a
preliminary way. In the case of The Clarkson
Company Limited v. The Queen, 4 Mahoney J.
stated at page 483:
The situation contemplated by Rule 474 is one where, while
there are a number of issues in an action, the disposition of one
of them will likely have the effect of putting an end to the
action.
That is certainly not the case here.
In the case of Canadian Javelin Ltd. v. Sparling
et al., 5 Addy J. stated at page 221:
In any motion under Rule 474 [as am. by SOR/79-57, s. 14]
of the Federal Court Rules, the question to be determined must
be a pure question of substantive law or of the application of
the law of evidence.
At page 222 he states:
Yet, the determination of that question as presented would not
finally dispose of the litigation between the parties even if the
defendants obtained the answer which they are seeking because
it would presumably still remain open for the plaintiff to
continue to trial of the action.
It does not appear that Rule 327 would be
appropriate either. It reads as follows:
3 [1982] 1 F.C. 821 (C.A.).
4 [1978] 1 F.C. 481 (T.D.).
5 (1981), 60 C.P.R. (2d) 220 (F.C.T.D.).
Rule 327. Upon any motion the Court may direct the trial of
any issue arising out of the motion, and may give such direc
tions with regard to the pre-trial procedure, the conduct of the
trial and the disposition of the motion as may seem expedient.
The only issue raised by the motion is one relating
to admissibility of a specific document in evidence
in order to expunge it from the record.
While certainly I would not wish to create a
precedent of general application to the effect that
questions of this nature can be considered in
advance rather than being left for consideration by
the trial judge, it appears to me that on the facts of
this case and in view of the very complete argu
ment on the question which has been made it is in
the interest of justice and the inherent jurisdiction
of this Court over its process that in the circum
stances of this particular case the Charter of
Rights argument invoked by plaintiff relating to
production of said document should be considered
and dealt with.
I now deal with another argument which I
believe would decide the present motion conclu
sively against plaintiff, namely that the Charter of
Rights cannot be invoked since it only came into
effect in 1982 as part of the Constitution Act,
1982 whereas the document was only obtained
during the audit between June 2, 1980 and March
1981 before the adoption of said Charter which
does not have retroactive effect. Plaintiff argues
that the fact that the Crown continues to hold the
document as evidence and refuses to return it or to
refrain from using it at trial constitutes a continu
ing breach of the provisions of the Charter, thus
giving the Court jurisdiction to order that the
evidence be expunged. In support of this reliance
was placed on the case of R. v. Davidson, 6 where
drugs were illegally seized as a result of a defective
search warrant prior to the said Charter. At page
708 the judgment stated:
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. Although I have not seen the text
6 (1982), 40 N.B.R. (2d) 702; 105 A.P.R. 702 (Q.B.).
of his judgment, Eberle, J., in Re Potma, 7 W.C.B. 365 appears
to take the contrary view.
In the Potma case (Re Regina and Potma 7 )
Eberle J. stated at page 200:
... I conclude that s. 24 can only be applied to rights which are
guaranteed by the Charter; and that means only on and after
the Charter became law.
A similar finding was made in the case of Regina
v. Shea,' and in Regina v. Longtin 9 where Blair
J.A. states at page 548:
The same reasoning applies to s. 8 of the Charter which
creates the new substantive right to be secure against unreason
able search and seizure. That section does not have retrospec
tive effect and, accordingly, cannot be relied on by the
appellant.
I conclude therefore that the weight of jurispru
dence indicates that the Canadian Charter of
Rights and Freedoms cannot be invoked with
retrospective effect on the facts in this case.
Even if I had reached the conclusion sought by
plaintiff that section 24 of the Charter can apply,
this would not have resulted in a finding in favour
of plaintiff. The said section reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in
the proceedings would bring the administration of justice into
disrepute.
Plaintiff presumably would have to rely on section
8 of the Charter, which reads:
8. Everyone has the right to be secure against unreasonable
search or seizure.
In the present case there was no formal search or
seizure but merely an income tax audit carried on
by Mr. Gal with plaintiffs permission during the
course of which he found a letter, which was not
concealed or hidden, which letter plaintiff consid
ers would be damaging to it if produced at the trial
of the action. He took a photostat of it and did not
(1982), 37 O.R. (2d) 189 (H.C.)..
8 (1982), 38 O.R. (2d) 582 (H.C.).
9 (1983), 41 O.R. (2d) 545 (C.A.).
advise Mr. Vos that he had done so, in fact hoping
that Mr. Vos would not be aware that he had even
seen the letter. While his motives may not have
been commendable, although certainly in the in
terest of his employer the Department of National
Revenue, I do not find that as a consequence the
search was unreasonable or illegal.
To go a step further, even if I had found that the
plaintiffs rights had in any way been infringed as
a result of Gal having made a copy of this docu
ment without directing plaintiffs attention to the
fact that he had done so, I would still apply the
provisions of subsection (2) of section 24 of the
Charter, concluding that the admission of this
document in evidence in the proceedings would not
bring the administration of justice into disrepute.
It has long been established in Canada, unlike the
United States, that even illegally obtained evi
dence can be used at trial in the discretion of the
Court depending on the facts of the case. In the
case of R. v. Esau, 10 Huband J.A. at page 237
makes reference to the judgment of Martland J. in
the Supreme Court case of Her Majesty The
Queen v. Wray, [1971] S.C.R. 272, in which he
stated [at page 287]:
The issue of law before this Court is as to the validity of the
principle stated in the reasons of the Court of Appeal of
Ontario that a trial judge in a criminal case has a discretion to
reject evidence, even of substantial weight, if he considers that
its admission would be unjust or unfair to the accused or
calculated to bring the administration of justice into disrepute.
I will deal with the latter part of this proposition first. I am
not aware of any judicial authority in this country or in
England which supports the proposition that a trial judge has a
discretion to exclude admissible evidence because, in his opin
ion, its admission would be calculated to bring the administra
tion of justice into disrepute. [Footnote omitted.]
At page 238 Huband J.A. states:
The wording of s. 24 (2) suggests that illegally obtained
evidence will continue to be admitted as evidence against an
accused, save in those cases where its admission would bring
the administration of justice into disrepute.
In the case of Regina v. Collins (1983), 5 C.C.C.
(3d) 141; 33 C.R. (3d) 130, a judgment of the
British Columbia Court of Appeal dated March
22, 1983, Chief Justice Nemetz stated at page 146
C.C.C., pages 138-139 C.R.:
10 (1983), 20 Man. R. (2d) 230 (C.A.).
The Supreme Court of Canada has already commented on
the admission of statements made by an accused. Mr. Justice
Lamer, in Rothman v. The Queen (1981), 59 C.C.C. (2d) 30,
[1981] 1 S.C.R. 640, said this in regard to the admission of
statements made by an accused:
The Judge, in determining whether under the circum
stances the use of the statement in the proceedings would
bring the administration of justice into disrepute, should
consider all the circumstances of the proceedings, the manner
in which the statement was obtained, the degree to which
there was a breach of social values, the seriousness of the
charge, the effect the exclusion would have on the result of
the proceedings. It must also be borne in mind that the
investigation of crime and the detection of criminals is not a
game to be governed by the Marquis of Queensberry rules.
The authorities, in dealing with shrewd and often sophisticat
ed criminals, must sometimes of necessity resort to tricks and
other forms of deceit but should not through the rule be
hampered in their work. What should be repressed vigorously
is conduct on their part that shocks the community.
Reference was also made in this judgment to the
judgment of Lord Cooper in Lawrie v. Muir,
[1950] S.C. (J.) 19 at page 26 (which was quoted
with approval by Cartwright C.J.C. in his dissent
in Wray), which passage reads as follows:
The law must strive to reconcile two highly important inter
ests which are liable to come into conflict—(a) the interest of
the citizen to be protected from illegal or irregular invasions of
his liberties by the authorities, and (b) the interest of the state
to secure that evidence bearing upon the commission of a crime
and necessary to enable justice to be done shall not be withheld
from courts of law on any mere formal or technical ground.
Neither of these objects can be insisted upon to the uttermost.
The protection for the citizen is primarily protection for the
innocent citizen against unwarranted, wrongful and perhaps
high-handed interference, and the common sanction is an
action for damages. The protection is not intended as a protec
tion for the guilty citizen against the efforts of the public
prosecutor to vindicate the law. On the other hand the interest
of the state cannot be magnified to the point of causing all the
safeguards for the protection of the citizen to vanish, and of
offering a positive inducement to the authorities to proceed by
irregular methods.
We are not here dealing with a criminal matter
nor is there any suggestion that plaintiff is in any
danger of being accused of any crime. The issue at
trial will merely be whether the manner in which
the charges for late payments have been treated as
interest in plaintiff's tax return is correct or not. In
finding some evidence which may be helpful to the
determination of this issue and making a copy of it
without advising plaintiff that he had done so, Mr.
Gal may have been indiscreet, but I find nothing in
this nor the admission of the document into the
record with a possibility of defendant producing it
at trial which constitutes conduct that "shocks the
community", to use the words of Mr. Justice
Lamer in the Rothman case.
For all the above reasons plaintiffs motion will
be dismissed with costs.
ORDER
Plaintiffs motion is dismissed with costs.
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