T-524-87
Director of Investigation and Research: the Com
petition Act, R.S.C. 1970, c. C-23, as amended by
S.C. 1986, c. 26, ex rel. Larry W. Bryenton
(Applicant) *
v.
Calgary Real Estate Board Co-operative Limited,
Royal Lepage Real Estate Services Limited
(Respondents) *
INDEXED AS: CANADA (DIRECTOR OF INVESTIGATION AND
RESEARCH) V. CALGARY REAL ESTATE BOARD CO-OPERATIVE
LTD.
Trial Division, Dubé J.—Ottawa, June 25 and
July 29, 1987.
Combines — Search warrants — Supporting affidavit —
Application for order compelling affiant to attend before
prothonotary for cross-examination upon information — Pur
suant to information, 23 search warrants issued and executed
under Competition Act — Senior prothonotary issuing
appointments for cross-examination of investigators on infor
mation — Director taking position investigators need not
appear for cross-examination — Applicability of R. 332(5)
providing for possibility of cross-examining affiants —
Whether right to cross-examination fundamental to Charter
ss. 7 and 8 rights — Motion dismissed — No prima facie
right to cross-examination at preliminary stage — Application
for approval of search warrant merely investigative step — No
substantial injustice caused by denying right to cross-examine
— Cross-examination at this stage just fishing expedition —
Before cross-examination permitted, deliberate falsehood or
omission or reckless disregard for truth should be alleged and
established — Presumption of validity of affidavit supporting
application for search warrant — Competition Act, R.S.C.
1970, c. C-23 (as am. by S.C. 1986, c. 26, ss. 18ff), s. 13 (as
am. idem, s. 24) — Federal Court Rules, C.R.C., c. 663, R.
332(5) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10
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. 7, 8 — Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5J (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), s. 91(2).
* Editor's note: In the present motion, the Calgary Real
Estate Board Co-operative Limited and Royal Lepage Real
Estate Services Limited are, in fact, the applicants and the
Director of Investigation and Research is the respondent.
Practice — Affidavits — In support of search warrant —
No prima facie right to cross-examine affiant upon informa
tion — Necessity of alleging and establishing deliberate false
hood or omission or reckless disregard for truth in affidavit —
Presumption of validity of supporting affidavits.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Corsini and the Queen (1979), 49 C.C.C. (2d) 208
(Ont. H.C.); McIntosh Paving Company Limited and
Lawson A.W. Hunter, judgment dated March 18, 1987,
Supreme Court of Ontario, not yet reported; R. v. Church
of Scientology and Zaharia (1987), 18 O.A.C. 321.
DISTINGUISHED:
Wilson v. The Queen, [1983] 2 S.C.R. 594.
REFERRED TO:
Butler Manufacturing Co. (Canada) Ltd. v. Minister of
National Revenue (1983), 83 DTC 5361 (Ont. S.C.); Re
Corr et al. and The Queen et al. (1987), 58 O.R. (2d)
528 (H.C.); Volckmar v. Krupp, [1958] O.W.N. 303
(H.C.); Attorney General of Canada v. Canadian Na
tional Transportation, Ltd. et al., [1983] 2 S.C.R. 206; 3
D.L.R. (4th) 16; Attorney General of Canada v. Québec
Ready Mix Inc., [ 1985] 2 F.C. 40; 25 D.L.R. (4th) 373
(C.A.); Goldman et al. v. Hoffmann-La Roche Limited,
judgment dated June 4, 1987, Ontario Court of Appeal,
not yet reported.
COUNSEL:
W. J. Miller for applicant.
Gordon E. Kaiser for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Cowling & Henderson, Ottawa, for respon
dents.
The following are the reasons for order ren
dered in English by
DUBÉ J.: The instant application is for an order
compelling Larry W. Bryenton to attend before a
prothonotary or any other person specifically
appointed by a prothonotary or the Court to be
cross-examined upon his information dated March
12, 1987.
Pursuant to the information in question, and
fourteen others, Mr. Justice Denault of this Court
issued 23 search warrants on March 12, 1987
pursuant to section 13 of the Competition Act
[R.S.C. 1970, c. C-23 (as am. by S.C. 1986, c. 26,
s. 24)]. The warrants were executed at the prem
ises of the respondents between March 16 and
March 20, 1987. On June 12, 1987, the senior
prothonotary issued appointments for the cross-
examination of each of the investigators in relation
to their respective informations. They were served
with the notices of appointment. On June 15,
1987, solicitors for the Director of Investigation
and Research ("the Director") advised that the
investigators were under no obligation to appear
for cross-examination.
The respondents submit that once the Director
chooses to proceed in the Federal Court of Canada
to obtain a search warrant he accepts the proce
dures applicable to the Court as defined in the
Federal Court Act [R.S.C. 1970 (2nd Supp.),
c. 10] and the Federal Court Rules [C.R.C., c.
663]. They allege that the decision to issue a
search warrant ex parte under the Competition
Act is, by its very nature, an ex parte order of the
Federal Court. Rule 332(5) of the Federal Court
Rules provides that any person making an affida
vit that has been filed may be required to appear
before a prothonotary, or any other person special
ly appointed to be cross-examined.
The respondents also submit that there is a
prima facie right of an adverse party to cross-
examine an informant on an affidavit submitted in
support of an application for a search warrant
issued under section 13 of the Competition Act
and refer to Butler Manufacturing Co. (Canada)
Ltd. v. Minister of National Revenue;' Re Corr et
al. and The Queen et al. 2 and Volckmar v.
Krupp.' The respondents also claim that, in any
event, there is a right to cross-examine an infor
mant in proceedings instituted to have an ex parte
order reviewed (Wilson v. The Queen). 4 The
respondents also argue that such a right of cross-
examination is fundamental to the legal rights
' (1983), 83 DTC 5361 (Ont. S.C.).
2 (1987), 58 O.R. (2d) 528 (H.C.).
3 [1958] O.W.N. 303 (H.C.).
° [1983] 2 S.C.R. 594.
guaranteed by sections 7 and 8 of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)].
The respondents also argue that since the provi
sions of Parts I and II of the Competition Act are
expressly enacted in accordance with the trade and
commerce power set out in subsection 91(2) of the
Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1)], and since
such provisions are clearly applicable to both
criminal and civil proceedings, that the procedure
in respect of those matters is not criminal proce
dure, hence the existing Federal Court Rules are
applicable (Attorney General of Canada v.
Canadian National Transportation, Ltd. et a1., 5
Hogg, Constitutional Law of Canada (2nd ed.),
pages 406 to 409; Attorney General of Canada v.
Québec Ready Mix Inc. 6 and Goldman et al. v.
Hoffmann-La Roche Limited).'
It must be borne in mind that the motion duly
filed and before me is a preliminary motion com
pelling an investigator to attend for cross-examina
tion. Counsel for the respondents had with him
another motion to rescind the search orders of
Denault J., which motion was not filed before the
hearing of this motion but was filed later to be
heard on September 8, 1987. The memorandum of
arguments tendered by counsel was likely designed
for the second motion but I allowed it to be used
for the instant motion in as much as it applied to
it. These reasons and this order therefore apply to
this first preliminary motion and will not neces
sarily affect the outcome of the second one to be
heard on September 8, 1987.
[ 1983] 2 S.C.R. 206; 3 D.L.R. (4th) 16.
6 [ 1985] 2 F.C. 40; 25 D.L.R. (4th) 373 (C.A.).
(Ont. C.A.—not yet reported, judgment dated 4 June 1987).
In my view, there is no prima facie right to
cross-examination at this preliminary stage. The
application for approval of the search warrant is
merely an investigative step and no substantial
injustice is caused by denying the right to cross-
examination. The application for approval is not
determinative of any final right and no useful
purpose would be served by extending the right to
cross-examination at this early stage (Re Corsini
and the Queen)." The respondents have not, as yet,
specified on what grounds the informations are
being challenged. There is no allegation that the
informants would have lied. Cross-examination at
this early stage would be merely a fishing
expedition.
It has been held in McIntosh Paving Company
Limited and Lawson A.W. Hunter,' by the
Supreme Court of Ontario that "before cross-
examination should be permitted an allegation of
deliberate falsehood or omission or reckless disre
gard for the truth with respect to essential ma
terial should be made and before a warrant should
be set aside, such allegation should be estab
lished".
The very recent decision of the Supreme Court
of Ontario in R. v. Church of Scientology and
Zaharia, 10 released January 30, 1987, reviews
extensively the whole matter. The Court adopts
the American jurisprudence to the effect that there
is a presumption of validity with respect to the
affidavit supporting the application for a search
warrant: "To mandate an evidentiary hearing, the
challenger's attack must be more than conclusory
and must be supported by more than a mere desire
to cross-examine".
The Church of Scientology decision and the
instant application are distinguishable from the
earlier Supreme Court of Canada decision in
Wilson v. The Queen" referred to by the respon-
8 (1979), 49 C.C.C. (2d) 208 (Ont. H.C.).
9 (Supreme Court of Ontario, not yet reported, judgment
dated 18 March 1987).
10 (1987), 18 O.A.C. 321.
11 Supra, at p. 2.
dents. The cross-examination in Wilson took place
at a trial before a Provincial Court Judge wherein
defence counsel was allowed to cross-examine the
police officer whose affidavit had been used in
support of the application for the authorization,
and not at the preliminary stage as applied for in
this instance.
Under the circumstances this motion is denied
with costs.
These reasons will apply mutadis mutandis to
similar applications in T-512-87, T-513-87,
T-514-87, T-515-87, T-516-87, T-517-87,
T-518-87, T-519-87, T-520-87, T-521-87,
T-522-87, T-527-87, T-531-87 and T-532-87.
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