Judgments

[1996] 2 F.C. 3

A-656-95

Mr. André Côté, Mr. Fernand Côté, Mr. Denis Côté, Ms. Gaétane Labrie, Mr. Jean Soucy, Mr. Gaétan Bouchard, Mr. Laval Desbiens, Mr. René Michel Ouellet, Ms. Sandra Thériault, Ms. Dorisse St-Pierre, Ms. Line St-Pierre, Mr. Richard Thivierge, Mr. Claude Lajoie, Mr. Yvon Lemieux, Ms. Marie-Josée Raymond, Ms. Aline Rouleau, Mr. André Lagacé, Ms. Louise Jean, Mr. Jean-Jacques Vien and Mr. Gaston Michaud (Appellants)

v.

Mr. George Addy, Director of Investigation and Research named in virtue of the Competition Act (Respondent)

Indexed as: Côté v. Addy (C.A.)

Court of Appeal, Marceau, MacGuigan and Décary JJ.A.—Montréal, January 8; Ottawa, February 5, 1996.

Competition — Appeal from F.C.T.D. decision dismissing motion for rescission of search warrants — Appellants notaries in Quebec — Allegedly conspiring to prevent, lessen competition in real estate deals contrary to Competition Act, s. 45(1)(c) — Search warrants issued under Act, s. 15(1) — No appeal from issuance of search warrant under Competition Act — Intention of Parliament to exclude appeal from order at investigatory stage — Appellants’ substantive challenges premature, better dealt with at trial.

Federal Court jurisdiction — Appeal Division — Appellants moving under R. 330 for rescission of search warrants — Trial Judge dismissing motion as premature — Under Competition Act, F.C.A. without jurisdiction to ascertain propriety of judgment in review of order issuing search warrant — Role not one of review, supervision in regard to Trial Division — Case law on appeal from search warrants reviewed — Unavailability of appeal under Competition Act same as that found by S.C.C. under Income Tax Act — Exclusion of s. 15 proceedings from appeal provision to be dealt with under Criminal Code.

This was an appeal from a Trial Division decision dismissing a motion for rescission of search warrants. These warrants were issued under subsection 15(1) of the Competition Act on the basis of allegations that the appellants, who are all practising notaries in the Province of Quebec, conspired to prevent or lessen competition in notarial services concerning immoveable transactions contrary to paragraph 45(1)(c) of the Act. The appellants challenged the legality of the respondent’s actions on the grounds that the unidentified sources relied on by the informant were not shown to be trustworthy, that the informations did not contain reasonable grounds to justify the issuance of search warrants and that the description of the effects allowed to be seized was too wide and general. The foregoing were alleged to constitute violations of sections 7 and 8 of the Charter but the validity of the Competition Act itself was not challenged. Richard J. found these substantive challenges to be premature and dismissed the motion for rescission of the search warrants. The main issue raised by this appeal was a matter of jurisdiction: whether an appeal lies to the Federal Court of Appeal from the issuance of a search warrant by the Trial Division.

Held (Décary J.A. dissenting), the appeal should be dismissed.

Per MacGuigan J.A.: The question of an appeal from the issuance of a search warrant under the Competition Act has been considered in two cases before the Ontario Court of Appeal which held that there is no appeal to that Court from the issuance of a search warrant under the Act. The statute has its own safeguards built into it for the protection of the party who is the subject of the search and the Court of Appeal should not encourage resort to other remedies. In the final analysis, the ultimate safeguard to a person being investigated is his trial once charges have been formulated. The unavailability of an appeal under the Competition Act is the same as that found by the Supreme Court of Canada in two recent cases where a majority of the Court held that no appeal lies from search warrants granted under the Income Tax Act. Although both cases were based on a right of appeal found in provincial law, not federal law as in the case at bar, policy considerations were the same. Since Parliament has made a deliberate policy decision to exclude an appeal from an order made at the investigatory stage, the rights of appeal under section 27 of the Federal Court Act would therefore have to be considered to be limited to non-criminal cases. Parliament explicitly provided for a statutory right of appeal in subsection 73(3) of the Competition Act from the Trial Division to the Court of Appeal in specified criminal prosecutions or proceedings brought under Part VI or section 74 of the Act, but not with respect to search warrant proceedings under section 15. Not only is there nothing in the Act that “otherwise provides” with respect to appeals from search warrants, but the exclusion of section 15 proceedings from the appeal provision suggests that they were meant to be dealt with under the Criminal Code . The appellants’ substantive challenge was not to the constitutional validity of section 15 or any other provision of the Act but to the respondent’s actions, and could be better dealt with at trial, where evidence as to them could be fully adduced. The appeal must fail on the ground of jurisdiction.

Per Marceau J.A.: Because of the provisions of the Competition Act and the Criminal Code as interpreted and applied by the Supreme Court of Canada in two recent cases, the Federal Court of Appeal has no jurisdiction to ascertain the propriety of a judgment in review of an order issuing a search warrant. The Court of Appeal is not, in regard to the Trial Division, in the same situation as a superior court is with respect to a lower court. Its role is not one of review and supervision. It might have the power to rule on the appropriateness of a Trial Division decision affirming a lack of jurisdiction but not to itself assume jurisdiction. Richard J.’s dismissal of the application for review, on the ground that it would be premature for him to consider the alleged violation of Charter principles, was not a refusal to exercise his jurisdiction under Rule 330. In so deciding, he acted wholly within his jurisdiction, and Parliament has not given the Court of Appeal the authority to ascertain whether or not he erred.

Per Décary J.A. (dissenting): Where the judge sitting in review declines to exercise his jurisdiction or exercises it only partially, is the person subject to the jurisdiction of the courts, who is thereby deprived of his right to review, obliged to abandon the exercise of this right or may he apply to the Court of Appeal and invite it to force the reviewing judge to exercise his jurisdiction or to exercise it in place of him? The reviewing Judge overlooked the appellants’ submission concerning the broad and general nature of the description of the things to be seized having regard to the nature of the alleged offence. Traditionally, it is the task of the judge sitting in review to decide, on the face of the warrant, the issue of its validity having regard to the scope of the description of the things to be seized. The appellants did not have a review in the proper sense of the word, and the remedy they were exercising was not, in regard to this review submission, a right of appeal in the nature of the right that Parliament wished to preclude through the provisions of the Competition Act. The appellants were entitled to a review of the order made ex parte; this right was in part denied to them by the reviewing Judge. They may ask the Federal Court of Appeal, in accordance with paragraphs 27(1)(c) and 52(b) of the Federal Court Act, to order the reviewing Judge to fully exercise his jurisdiction or ask the Court to do so in his place.

The warrants issued herein allowed the respondent to obtain information pertaining to all of the professional services rendered by the notaries, and to determine whether, in addition to acts affecting immovable transactions, there were others that might be in violation of the Competition Act. It is the particular, and not the general, that the warrant should have targeted, and while it is possible to allow a more general seizure in so far as it can be related to the particular, the method adopted in the case at bar, which was initially to allow the general seizure only to reduce it later to the particular as the seizing officers may see fit, in their discretion, runs fundamentally counter to the established principles. With respect to so-called economic offences, such as those created by the Competition Act, the courts more readily accept that warrants be drafted in general terms. But drafting a warrant so as to transform the particular alleged offence into a general offence cannot be tolerated. The judge who issues a warrant must satisfy himself that the means requested have some proportionality to the alleged offence and the premises in question. The Judge who issued the warrant did not have the authority to describe the things to be seized in the way she did and in doing so, she gave the respondent carte blanche. The order issued ex parte must be rescinded.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 8, 24.

Canadian Security Intelligence Service Act, S.C. 1984, c. 21.

Competition Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19), ss. 15(1) (as am. idem, s. 24), 45(1) (as am. idem, s. 30), 73(1), (3), 74 (as am. idem, s. 44).

Criminal Code, R.S.C., 1985, c. C-46.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 27(1) (as am. by S.C. 1990, c. 8, s. 7), 52(b) (as am. idem, s. 17).

Federal Court Rules, C.R.C., c. 663, R. 330 (as am. by SOR/79-58, s. 1).

Income Tax Act, S.C. 1970-71-72, c. 63, s. 231.3 (as enacted by S.C. 1986, c. 6, s. 121).

Interpretation Act, R.S.C., 1985, c. I-21, s. 34(2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338; (1990), 106 N.B.R. (2d) 408; 73 D.L.R. (4th) 110; 265 A.P.R. 408; [1990] 2 C.T.C. 262; 58 C.C.C. (3d) 65; 90 DTC 6447; 110 N.R. 171; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; (1993), 102 D.L.R. (4th) 456; [1993] 4 W.W.R. 225; 78 B.C.L.R. (2d) 257; 81 C.C.C. (3d) 286; 20 C.R. (4th) 104; 14 C.R.R. (2d) 193; [1993] 1 C.T.C. 301; 93 DTC 5137; 153 N.R. 1; 45 W.A.C. 81; Goldman et al. v. Hoffmann-La Roche Ltd. (1987), 60 O.R. (2d) 161; 42 D.L.R. (4th) 436; 35 C.C.C. (3d) 488; 16 C.P.R. (3d) 289; 22 O.A.C. 85 (C.A.); Hudson’s Bay Co. v. Canada (Director of Investigation and Research under the Competition Act) (1992), 10 O.R. (3d) 89; 42 C.P.R. (3d) 448; 58 O.A.C. 7 (C.A.); R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577; (1991), 83 D.L.R. (4th) 193; 7 C.R. (4th) 117; 128 N.R. 81.

CONSIDERED:

Atwal v. Canada, [1988] 1 F.C. 107 (1987), 28 Admin. L.R. 92; 36 C.C.C. (3d) 161; 59 C.R. (3d) 339; 32 C.R.R. 146 (C.A.); Société pour l’Avancement des droits en audiovisuel (SADA) Ltée v. Collège Édouard-Montpetit, [1981] 2 F.C. 307 (1980), 58 C.P.R. (2d) 119; 39 N.R. 508 (C.A.); Solvent Petroleum Extraction Inc. v. M.N.R., [1990] 1 F.C. 20 (1989), 50 C.C.C. (3d) 182; 28 F.T.R. 79; 99 N.R. 22 (C.A.); Zevallos and The Queen, Re (1987), 37 C.C.C. (3d) 79; 59 C.R. (3d) 153; 32 C.R.R. 373; 22 O.A.C. 76 (Ont. C.A.); Lefebvre c. Morin, 200-10-000174-83, February 4, J.E. 85-366 (Que. C.A.); Bâtiments Fafard Inc. et autres c. Canada et autres (1991), 41 Q.A.C. 254; [1992] R.L. 91 (C.A.); Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; (1982), 141 D.L.R. (3d) 590; 70 C.C.C. (2d) 385; 28 C.R. (3d) 289; 1 C.R.R. 318; 44 N.R. 462.

REFERRED TO:

Baron v. Canada, [1993] 1 S.C.R. 416; (1993), 99 D.L.R. (4th) 350; 78 C.C.C. (3d) 510; 18 C.R. (4th) 374; 13 C.R.R. (2d) 65; [1993] 1 C.T.C. 111; 93 DTC 5018; 146 N.R. 270; R. v. Meltzer, [1989] 1 S.C.R. 1764; (1989), 49 C.C.C. (3d) 453; 70 C.R. (3d) 383; 41 C.R.R. 39; 96 N.R. 391; Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29 D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 21 C.R.R. 76; 67 N.R. 241; 16 O.A.C. 81; Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535 (1984), 13 D.L.R. (4th) 706; 12 C.R.R. 45; [1984] CTC 506; 84 DTC 6478; 55 N.R. 255 (C.A.); Lagiorgia v. Canada, [1987] 3 F.C. 28 (1987), 35 C.C.C. (3d) 445; 16 C.P.R. (3d) 74; 57 C.R. (3d) 284; [1987] 1 C.T.C. 424; 87 DTC 5245; 77 N.R. 78 (C.A.); Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; Church of Scientology et al. and The Queen (No. 6), Re (1987), 31 C.C.C. (3d) 449; 30 C.R.R. 238; 18 O.A.C. 321 (Ont. C.A.); leave to appeal to SCC refused [1987] 1 S.C.R. vii.

APPEAL from a Trial Division decision dismissing a motion for rescission of search warrants issued under subsection 15(1) of the Competition Act. Appeal dismissed.

COUNSEL:

Bruno J. Pateras, Q.C., for appellants.

François Rioux for respondent.

SOLICITORS:

Pateras & Iezzoni, Montréal, for appellants.

Deputy Attorney General of Canada, for respondent.

The following is the English version of the reasons for judgment rendered by

Marceau J.A.: I have had the advantage of reading the opinions issued by my two colleagues and the opposed conclusions they defend. I agree with MacGuigan J.A. that because of the provisions of the Competition Act [R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19)] and the Criminal Code [R.S.C., 1985, c. C-46] as interpreted and applied by the Supreme Court of Canada in its recent decisions, Knox Contracting Ltd.[1] and Kourtessis,[2] this Court has no jurisdiction to ascertain the propriety of a judgment in review of an order issuing a search warrant. I agree with his reasons for judgment and, like him, I think they ineluctably lead to the immediate dismissal of the appeal. With respect, I feel I must dissociate myself from Décary J.A.’s opinion that MacGuigan J.A.’s conclusion is not decisive and that the appeal ought nevertheless to succeed on the ground that, while this Court has no jurisdiction to ascertain the propriety of the reviewing judgment, it can and should force the Trial Division Judge to fully exercise his power of review where he failed to do so or rule in place of him if the Court considers this appropriate. Briefly, here is why.

I doubt the soundness of this proposition on which my colleague bases his conclusion. The Appeal Division of the Federal Court is not, in regard to the Trial Division, in the same situation as a superior court is with respect to a lower court. Its role is not one of review and supervision. It would be surprising if it derived jurisdiction by the mere refusal of the Trial Division to act. It might perhaps have the power to rule on the appropriateness of a Trial Division decision affirming a lack of jurisdiction but certainly not, it seems to me, in order to itself assume jurisdiction. In any event, my opposition to my colleague’s thesis stems not so much from these reservations I have just expressed in respect of his principled proposition as it does from my conviction that this proposition, even if it were valid, is not applicable.

In my opinion, the Trial Division Judge’s dismissal of the application for review, on the ground that it would be premature for him to consider the alleged violation of 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.) [R.S.C., 1985, Appendix II, No. 44]] principles, is not comparable to a refusal to exercise his jurisdiction under Rule 330 [Federal Court Rules, C.R.C., c. 663 (as am. by SOR/79-58, s. 1)]. In deciding that it would be premature to hear and determine this Charter-based submission—whether for lack of evidence or otherwise is of no account—the Judge was operating wholly within his jurisdiction. Arguably, he erred, but it cannot be maintained that he declined to exercise his jurisdiction, and Parliament has not given this Court the authority to ascertain whether or not he erred. Moreover, in practical terms alone, my colleague’s position seems to me to result in a situation that would be hard to understand: dismissing the application for review on the ground that it would be premature to hear and determine the Charter-based argument would result in a decision by this Court which would be subject to review by the Supreme Court, while a dismissal of the application on the ground that the Charter-based argument lacked persuasiveness would definitively shut the door to any consideration by any other court, superior or not.

That is why I am unable to subscribe to the thesis of my colleague Décary J.A., and I adopt the reasons for judgment of my colleague MacGuigan J.A., with his conclusion that the appeal must be dismissed for want of jurisdiction.

* * *

The following are the reasons for judgment rendered in English by

MacGuigan J.A.: This is an appeal from a judgment dismissing a motion for rescission of search warrants. The warrants had been issued following the swearing of informations by a representative of the respondent alleging that there were reasonable grounds to believe that the appellants, who are all of the practising notaries in Rivière-du-Loup and Trois-Pistoles in the Province of Quebec, had agreed and conspired to prevent or lessen competition in notarial services concerning immoveable transactions contrary to paragraph 45(1)(c) [as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 30] of the Competition Act, R.S.C., 1985, c. C-34, as amended (the Act).

The informant stated that his sources were principally the six telephone polls he conducted of the offices in question. On the basis of these informations, McGillis J. issued search warrants on 16 and 22 March 1995, under subsection 15(1) [as am. idem, s. 24] of the Act, authorizing the respondent to enter and search the appellants’ premises in order to seize certain documents. The search warrants were all executed in March 1995.

The appellants brought a motion under Rule 330 of the Federal Court Rules for rescission of the search warrants. This motion was dismissed by Richard J. on 10 October 1995. The appellants appealed to this Court under subsection 27(1) of the Federal Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 7].

Although the joint record in the case at bar is almost exclusively in French, the case was argued entirely in English by counsel for both parties. The Court required the parties to argue the jurisdictional issue before the substantive issue.

Relevant provisions of the Competition Act read as follows:

15. (1) Where, on the ex parte application of the Director or the authorized representative of the Director, a judge of a superior or county court or of the Federal Court is satisfied by information on oath or solemn affirmation

(a) that there are reasonable grounds to believe that

(i) a person has contravened or failed to comply with an order made pursuant to section 32, 33 or 34, or Part VIII,

(ii) grounds exist for the making of an order under Part VIII, or

(iii) an offence under Part VI or VII has been or is about to be committed, and

(b) that there are reasonable grounds to believe that there is, on any premises, any record or other thing that will afford evidence with respect to the circumstances referred to in subparagraph (a)(i), (ii) or (iii), as the case may be,

the judge may issue a warrant under his hand authorizing the Director or any other person named in the warrant to

(c) enter the premises, subject to such conditions as may be specified in the warrant, and

(d) search the premises for any such record or other thing and copy it or seize it for examination or copying.

…

45. (1) Every one who conspires, combines, agrees or arranges with another person

…

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million dollars or to both.

…

73. (1) Subject to this section, the Attorney General of Canada may institute and conduct any prosecution or other proceedings under section 34, any of sections 45 to 51 … in the Federal Court—Trial Division, and for the purposes of the prosecution or other proceedings, the Federal Court—Trial Division has all the powers and jurisdiction of a superior court of criminal jurisdiction under the Criminal Code and under this Act.

…

(3) An appeal lies from the Federal Court—Trial Division to the Federal Court of Appeal and from the Federal Court of Appeal to the Supreme Court of Canada in any prosecution or proceedings under Part VI or section 74 of this Act as provided in Part XXI of the Criminal Code for appeals from a trial court and from a court of appeal.

Subsection 34(2) of the Interpretation Act, R.S.C., 1985, c. I-21, provides:

34. (1) …

(2) All of the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.

Rule 330 of the Federal Court Rules stipulates:

Rule 330. The Court may rescind

(a) any order that was made ex parte, or

(b) any order that was made in the absence of a party who had failed to appear through accident or mistake or by reason of insufficient notice of the application;

but no such rescission will affect the validity or character of anything done or not done before the rescinding order was made except to the extent that the Court, in its discretion, by rescission order expressly provides.

Subsection 27(1) of the Federal Court Act reads as follows:

27. (1) An appeal lies to the Federal Court of Appeal from any

(a) final judgment,

(b) judgment on a question of law determined before trial, or

(c) interlocutory judgment, or

(d) determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada,

of the Trial Division.

The Canadian Charter of Rights and Freedoms provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

…

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.

I

As a matter of jurisdiction this case focusses on an issue that was the subject of a 3-3 split in the Supreme Court of Canada in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53: is there an appeal to the Federal Court of Appeal from the issuance of a search warrant by the Trial Division?

In Kourtessis a provincial superior court had issued warrants to search for and seize documents which could afford evidence of violations of the Income Tax Act [S.C. 1970-71-72, c. 63]. The panel of the Supreme Court was unanimous in holding that the appeal should be allowed, since section 231.3 [as enacted by S.C. 1986, c. 6, s. 121] had been held already to violate section 8 of the Charter in Baron v. Canada, [1993] 1 S.C.R. 416, but divided evenly over the procedural issue of whether it mattered jurisdictionally that the search warrant in Baron had been granted by the Federal Court whereas in the case at bar it had emanated from a provincial superior court.

La Forest J. emphasized that appeals are solely statutory creations, as the Court had decided in R. v. Meltzer, [1989] 1 S.C.R. 1764, and that, especially in criminal cases, interlocutory matters which can be decided at trial should be, rather than on separate applications, for reasons of costs, time, effort and money. Under the Income Tax Act the procedure for penal provisions is that set forth in the Criminal Code; which in its comprehensive scheme of criminal procedure provides for no right of appeal from an order issuing a search warrant; this result flowed from the decision in Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338, where a majority of the Court held that the section 231.3 search procedures under the Income Tax Act were enacted pursuant to federal jurisdiction over criminal law and procedure and that therefore any right of appeal provided by provincial procedure had no application.

La Forest J. considered the possible anomaly that a right of appeal on a search warrant may exist when a warrant is alternatively sought from a Federal Court judge, under subsection 27(1) of the Federal Court Act (at pages 84-85):

The likelihood is that Parliament did not really advert to the different procedures in the two courts. The right of appeal to the Federal Court of Appeal was not tailored to the needs of the criminal justice process, as it was in respect of criminal procedure in the provincial courts. Rather the provision for appeal in the Federal Court is a general one intended to meet the needs of the ordinary jurisdiction of that court, the major function of which is to deal with questions of a civil and administrative character and other matters peculiarly of federal concern, rather than the criminal justice process where different considerations may come into play. In short, the anomaly may lie in the assumption that a right of appeal to the Federal Court of Appeal exists. For there are strong reasons of policy for not providing appeals from interlocutory decisions in criminal proceedings generally. While I quite understand the temptation to read in a right of appeal in this case for the sake of consistency, I am deeply concerned about the general implications of courts of appeal reading in rights of appeals and other procedures into criminal proceedings. I might also note that there may still be an issue of the appropriate role for appellate review of the issue of search warrants by the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act, R.S.C., 1985, c. F-7. It would amount to an unusual venture of the Federal Court of Appeal into the realm of what is largely criminal procedure.

There is another factor that must be kept in mind. I am not, as I shall indicate later, completely certain that the judge issuing the warrant was intended to entertain a constitutional question of the kind raised here. If so, there could be no appeal from that question and, in any event, since the issues with which the judge deals in performing his functions are of a factual nature, there is little, if any, room for an appeal at all.

In view of all these unanswered questions, it would be unsafe in the absence of argument to simply assume that the general right of appeal set forth in the Federal Court Act applies to a proceeding provided in a separate statute that is a mere adjunct to a general system of criminal procedure where appeals of this nature are not provided. If one reads all the relevant legislative provisions harmoniously in accordance with their underlying purpose, it is certainly arguable that Parliament did not intend by this minor grant of jurisdiction to the Federal Court (in what is for it an untypical jurisdiction) to have had in contemplation the general right of appeal devised for quite different types of proceedings. There may, in other words, be no anomaly at all.

I should add that there is nothing in Baron v. Canada, supra, that touches the matter. That case involved an action for a declaration which was clearly subject to appeal. At all events, no issue of jurisdiction was raised in that case.

However, he agreed with his other colleagues that the appellants should be permitted by the Court in its discretion to bring an action for a declaration, since there is otherwise no reasonably effective procedure for the consideration of constitutional challenges. When the trial process has begun there is a “competent court” to deal with Charter challenges. But (at page 88):

It is different at the pre-trial stage. Where a search is being conducted, as in this case, there is no trial judge and unlike the situation after the charge, no express Charter guarantee that proceedings must take place within a reasonable time. An investigation can go on indefinitely in continuing breach (if the search provisions are unconstitutional) of the appellants’ Charter rights for an extensive period. The property of the individual subject to the search may remain in the custody of the state for a protracted period in violation of Charter norms.

In ordinary criminal cases, the problem presented in this case does not arise. Power to issue search warrants under s. 487 of the Criminal Code is vested in a justice of the peace and, accordingly, certiorari may issue from a superior judge to test the legality of the procedure, and if found invalid, the warrant may be quashed and any items seized must be returned. The difficulty here is that the power to issue a search warrant under the Income Tax Act is vested in a superior court judge and at common law a decision of a superior court judge cannot be the subject of collateral attack.

The judge issuing the warrant is not in a position to review for constitutionality at an ex parte hearing, and I rather doubt that the judge, or another judge acting for him, could do so on a Wilson type review: Wilson v. The Queen, [1983] 2 S.C.R. 595. Neither Wilson nor Meltzer is clear on this point.

Because of the fact that otherwise the proceedings would be “insulated from prompt and effective review for constitutionality by the device of assigning to a superior court judge functions which for centuries have been performed by inferior court judges subject to judicial review and which, even today, are still performed by inferior court judges in the case of the most serious criminal offences” (at page 91) an action for a declaration must be allowed.

Sopinka J. was of the opinion that the Court’s decision in Knox Contracting was not determinative in the case at bar, although “the only relevant differences between Knox Contracting and the present appeal are that the constitutionality of the governing legislation was not challenged, nor was declaratory relief sought, in Knox Contracting” (at page 101). Sopinka J. continued (at pages 107-109):

It would be anomalous if taxpayers who must challenge ITA search warrants in the provincial superior courts were to find themselves without a right of appeal in the event of an unsuccessful challenge, whereas no question arises with respect to the appellate jurisdiction of the Federal Court of Appeal in identical proceedings brought in the Federal Court. The juxtaposition of Kourtessis and Baron illustrates this practical difficulty. In the former, the Minister applied to the provincial superior court for a warrant, and in the latter the Minister applied to the Federal Court for a warrant. The ITA provides that the Minister may make this choice in his or her discretion. In most cases, the option is exercised on the basis of convenience. The exercise of this option will have grave implications for the rights of the taxpayer if we approve the blanket application of Knox Contracting to all proceedings challenging ITA warrants in provincial courts. If we uphold the judgment of the British Columbia Court of Appeal in Kourtessis, taxpayers who have the bad luck of being subject to a warrant issued by a provincial superior court will have no appeal from a provincial superior court judge’s refusal to set aside the warrant, whereas if the warrant is issued by the Federal Court there will be no problem of appellate jurisdiction, as Baron demonstrates. It would be unfortunate to allow a taxpayer’s appellate rights to be determined on the basis of the Minister’s whim.

My colleague, La Forest J., suggests that there is no anomaly because, as I understand his reasons, there may be no appeal to the Federal Court of Appeal in the circumstances outlined in Baron. The relief claimed in Baron was identical to the relief claimed in this appeal and included a motion to set aside the search warrants as well as an action for a declaration. Relying on this right of appeal, the Court of Appeal quashed the search warrants and declared s. 231.3 ITA invalid. That appeal was heard together with this appeal in which jurisdiction was very much a live issue. The issue of jurisdiction in Baron, in contrast to this appeal, was not dealt with per incuriam but on the basis that no question with respect to jurisdiction existed. If indeed the Federal Court of Appeal lacked jurisdiction, then this Court’s decision was a nullity. Our jurisdiction to hear an appeal and to affirm the judgment on appeal depends on the judgment on appeal being a valid exercise of that court’s jurisdiction.

Sopinka J. first suggested a remedy of a declaration coupled with certiorari (at page 109):

To avoid this anomaly, I would distinguish Knox Contracting so as not to foreclose an appeal in proceedings relating to:

(i)   a declaration that the statute authorizing a search warrant violates the Constitution, coupled with

(ii)  an application to set aside the search warrant.

However, in the alternative he also accepted an action for a declaration on constitutional grounds on its own, because “an action for a declaration as to the constitutional validity of a statute does not necessarily partake of the character of the statute which is attacked” (at page 113). By virtue of subsection 24(1) of the Charter, there are also some other proceedings for which a declaration could be allowed in criminal cases: “[o]ne example is an application to quash an information or indictment on the grounds that the section of the Criminal Code upon which the charge is based violates the Charter” (at page 115).

Kourtessis, in sum, has the effect of highlighting the issue without deciding it. It has something of the character of a subsequent skirmish following the earlier decision in Knox Contracting, which revolved principally around whether the relevant provisions of the Income Tax Act derived their validity from the federal taxing power or the federal criminal law power. The majority in that 4-3 decision held that the fact that there was legislative authority under both federal powers did not determine the result; rather, a challenge to specific provisions must be decided on the basis of those provisions than on the statute as a whole. Provisions establishing an offence punishable by fine or imprisonment for a fraudulent and dishonest tax return were legislation in relation to criminal law. Cory J. wrote (at page 356):

Thus, although ss. 231.3 and 239 may be constitutionally justified under the general taxing power, it is not necessary for the purposes of this case to explore that aspect. These sections are truly criminal in their nature, and criminal procedure is expressly excluded from provincial jurisdiction.

La Forest J. put it this way (at pages 356-357):

In choosing a criminal sanction and applying all the provisions of the Criminal Code “except to the extent that the enactment otherwise provides” (see Interpretation Act, R.S.C., 1985, c. I-21, s. 34(2)), Parliament, it seems to me, has shown a disposition to adopt the ordinary procedures of the criminal law for their enforcement, subject to any variations spelled out in the Income Tax Act….

It was therefore held by the majority that no appeal lies from search warrants granted under the Income Tax Act. Cory J. went so far as to say as a matter of principle (at page 354):

It is appropriate that the Code provides no avenue of appeal from these procedures, as such appeals are neither desirable nor necessary and should not, as a general rule, be encouraged.

These considerations will be helpful when applied to the case at bar.

II

The question of an appeal from the issuance of a search warrant under the Competition Act was considered by the Ontario Court of Appeal in Goldman et al. v. Hoffmann-La Roche Ltd. (1987), 60 O.R. (2d) 161. Finlayson J.A. held for the Court that the alleged offences supporting the issuance of a search warrant were “criminal in nature and depend upon s. 91(27) of the Constitution Act, 1867 for their enactment” (at page 173), even though other parts of the Act may require the support of the trade and commerce power (s. 91(2)). Finlayson J.A. concluded (at pages 178 and 180):

In my opinion, in the case before us, there is governing federal legislation apart from the Competition Act. It is the Criminal Code and it makes no provision for an appeal with respect to the issuance of a search warrant. If and when charges are laid under ss. 34 and 38 of the Competition Act, the Code will govern the prosecution, trial, and appeals with respect thereto. In the meantime, the Code is silent on the issue before us as it is with respect to search warrants in all criminal cases. I would adopt the words of Lacourcière J.A. [in Ratherman (1979) 26 O.R. (2d) 520, 528, 103 D.L.R. (3d) 491] and say that “there has been a deliberate decision by Parliament to exclude an appeal from an order made at the investigatory stage as a matter of policy”.

…

The above review of the Competition Act and authority compels me to the conclusion that there is no appeal to this court from the issuance of a search warrant under s. 13. I am further of the view that this court should not strain to find such remedy which will only have the effect of stultifying an investigative process. The Competition Act has its own safeguards built into it for the protection of the party that is the subject of the search and this court should not encourage resort to other remedies. In the final analysis, the ultimate safeguard to a person being investigated is his trial once charges have been formulated. No court should speculate at this stage of the proceedings as to whether the issuance of a search warrant may become an abuse of process. The Director proceeds at his own peril in this matter, and if he has abused his power, or if he later does so, his conduct and that of his representatives, if not caught by the review process in the Competition Act, must undergo the scrutiny of a trial judge before any harm can befall the party under investigation.

A different panel of the Ontario Court of Appeal in Hudson’s Bay Co. v. Canada (Director of Investigation and Research under the Competition Act) (1992), 10 O.R. (3d) 89 also quashed an order refusing to set aside two search warrants issued under section 15 of the Competition Act on the ground that the Court of Appeal was without jurisdiction. The Court stated (at page 91):

No appeal from the issuing ex parte of a search warrant is provided in the Competition Act. In the absence of a statutory right of appeal, s. 674 of the Criminal Code…governs…. No such appeal is provided…in the Criminal Code…. Therefore, this court has no inherent jurisdiction.

I accept these decisions; I believe the Ontario Court of Appeal has correctly stated the law. As McLachlin J. said for an almost unanimous Court in R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, at page 641:

[A]ppeals from rulings on preliminary inquiries are to be discouraged [in criminal cases]. While the law must afford a remedy where one is needed, the remedy should, in general, be accorded within the normal procedural context in which an issue arises, namely the trial.

There was only one exception to Charter review at the trial stage, she believed, and that was based on the earlier decision in Mills v. The Queen, [1986] 1 S.C.R. 863 (at pages 640-641):

The only exception to this rule would appear to be cases where no other remedy, existing or prospective, lies for a wrong under the Charter …. Thus while Charter review will normally take place at trial, it may be possible to seek earlier review in cases where there is no other remedy for a wrong.

The unavailability of an appeal under the Competition Act is thus the same as that found by the Supreme Court in Knox Contracting with regard to the Income Tax Act. Of course, in both Knox and Kourtessis this result followed in the face of a challenge based on a right of appeal found in provincial law, not federal law as in the case at bar. Nevertheless, the policy considerations seem to be entirely the same. Since Parliament has made a deliberate policy decision to exclude an appeal from an order made at the investigatory stage, in the light of what La Forest J. referred to as “comprehensive procedure under the Criminal Code” (Kourtessis , supra, at page 80) and the safeguards built into the Competition Act referred to by Finlayson J.A. in Hoffmann-La Roche, the rights of appeal under section 27 of the Federal Court Act would therefore have to be considered to be limited to non-criminal cases, as the respondent urged. In the words of La Forest J. already quoted (Kourtessis, supra, at page 84):

The right of appeal to the Federal Court of Appeal was not tailored to the needs of the criminal justice process, as it was in respect of criminal procedure in the provincial courts. Rather the provision for appeal in the Federal Court is a general one intended to meet the needs of the ordinary jurisdiction of that court, the major function of which is to deal with questions of a civil and administrative character and other matters peculiarly of federal concern, rather than the criminal justice process where different considerations may come into play.

This ties in with subsection 34(2) of the Interpretation Act, which provides that, in the case of both indictable and summary conviction offences, the provisions of the Criminal Code apply to offences created by other enactments, except to the extent that the enactment otherwise provides.

As the respondent pointed out, Parliament explicitly provided for a statutory right of appeal in subsection 73(3) of the Act from the Trial Division to this Court in specified criminal prosecutions or proceedings brought under Part VI or section 74 [as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 44] (Part VII) of the Act, but not with respect to search warrant proceedings under section 15 (Part I). Not only is there nothing in the Act that “otherwise provides” with respect to appeals from search warrants, but the exclusion of section 15 proceedings from the appeal provision suggests that they were meant to be dealt with under the Criminal Code .

The appellants protested that such an interpretation would fly in the face of existing Federal Court authority, particularly our decision in Atwal v. Canada, [1988] 1 F.C. 107(C.A.), which dealt with the Court’s appellate jurisdiction over a wiretap and search warrant issued under the Canadian Security Intelligence Service Act [S.C. 1984, c. 21]. The jurisdictional issue focussed principally on whether the Judge who issued the warrant was acting as a judge of the Court or as persona designata; it was held that he was acting as a trial judge. On the question whether an appeal could be taken even then, Mahoney J.A. said shortly (at page 116):

In my opinion, this submission fails at the first hurdle. The underlying assumption that this is an appeal from the issuance of the search warrant is not correct. This appeal is taken from the refusal to rescind on an application under Rule 330. This court has accepted its jurisdiction to entertain such an appeal, to conclude that the Trial Judge erred in refusing to rescind an ex parte order and, by allowing the appeal, effectively to set aside that order, e.g., Société pour l’Avancement des droits en audiovisuel (SADA) Ltée v. Collège Edouard-Montpetit, [1981] 2 F.C. 307(C.A.). No strong reason for this court to depart from its previous decisions as to its jurisdiction in the circumstances has been shown….

In Société pour l’Avancement des droits en audiovisuel (SADA) Ltée v. Collège Édouard-Montpetit, [1981] 2 F.C. 307(C.A.), cited by Mahoney J.A., the Court dealt with an application to rescind an ex parte order for an interim injunction in a copyright case, but no issue as to jurisdiction was raised.

Atwal was decided before the Supreme Court decisions in Knox Contracting and Kourtessis, as was Solvent Petroleum Extraction Inc. v. M.N.R., [1990] 1 F.C. 20(C.A.), another case on which the appellants relied. There this Court upheld the constitutionality of section 231.3 of the Income Tax Act, which was later struck down by the Supreme Court in Baron, and affirmed an appeal from a dismissal by the Trial Division of an application to quash a search warrant. There was no jurisdictional challenge. The same is true of the decisions of this Court in Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535(C.A.); and Lagiorgia v. Canada, [1987] 3 F.C. 28(C.A.). Equally, in the Supreme Court decision in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, where provisions in the Competition Act were struck down on section 8 grounds, there was no jurisdictional issue.

There is perhaps some difference as to the exception to the general rule of non-appealability between the Supreme Court formulations in Seaboyer and Kourtessis. In Seaboyer McLachlin J. was of the view that not even all Charter-based challenges to legislation should be appealable, but only those where there would be no other remedy. La Forest J. agreed in Kourtessis with the principle that “[a]s long as a reasonably effective procedure exists for the consideration of constitutional challenges, I fail to see why another procedure must be provided” (at page 87). But he concluded that there is no reasonably effective procedure “[i]n the present state of the law” (at page 87) at the pre-trial stage. Particularly, there is no express Charter guarantee that proceedings take place within a reasonable time, with the consequence that “[a]n investigation can go on indefinitely in continuing breach (if the search provisions are unconstitutional) of the appellants’ Charter rights for an extensive period” (at page 88). Sopinka J. was of the same opinion.

I take it that both La Forest and Sopinka JJ. were referring to Charter challenges to legislation as enacted, not merely as applied. La Forest J.’s parenthesis (“if the search provisions are unconstitutional”) would seem to so indicate. Sopinka J. referred to the fact that “an action for a declaration as to the constitutional validity of a statute does not necessarily partake of the character of the statute which is attacked” (at page 113).

In the case at bar, if there was any Charter issue at all, there was still no challenge to the constitutional validity of section 15 of the Act nor to any other provision of the Act. The substantive challenge in this case was as follows: that the unidentified third-party sources on which the informant relied to conclude that the appellants had violated the Act were not shown to be trustworthy; that the informations did not contain reasonable grounds to justify the issuance of the search warrants; and that the description of the effects allowed to be seized was too wide and general. The foregoing were incidentally alleged to be Charter violations of sections 7 and 8, but of course have nothing to do with the validity of the Act itself. In my opinion, Richard J. was correct in finding such challenges as premature.

In other words, the appellants’ substantive challenge in the case at bar was not to the law but to the respondent’s actions, and could be better dealt with at trial, where evidence as to them could be fully adduced.

III

In the result the appeal must fail on the ground of jurisdiction.

This being the case, it is not necessary to deal with the substantive issues raised by the appellants. It is, however, worth noting that if there had been a challenge in this case to the Act itself on the basis of section 7 or 8 of the Charter, it could have been treated, as suggested by La Forest J., in the context of an action for a declaration.

The appeal must be dismissed with costs.

* * *

The following is the English version of the reasons for judgment rendered by

Décary J.A.: I am in essential agreement with the opinion of my colleague MacGuigan J.A., but I do not believe that the conclusion he has reached in this matter can be determinative of the whole of the dispute before us. Let me explain.

The right of someone subject to the jurisdiction of the courts to seek review of an authorization made ex parte is established. Where the impugned order was made by a judge of the Federal Court, there is express provision for review under Rule 330. Where the order was made by a judge of a provincial superior court, it would appear that review may be sought pursuant to the inherent jurisdiction of the superior court to review its ex parte orders. Counsel for the respondent agreed with this.

The problem that arises in this case, and to my knowledge it is unprecedented, is the following: where the judge sitting in review declines to exercise his jurisdiction or exercises it only partially, is the person subject to the jurisdiction of the courts, who is thereby deprived of his right to review, obliged to abandon the exercise of this right or may he apply to the Court of appeal and invite it to force the reviewing judge to exercise his jurisdiction or to exercise it in place of him?

The appellants’ application for review was founded on the following submissions:[3]³

[translation] (a) the orders issued by McGillis J. were in violation of sections 7 and 8 of the Charter and were not authorized by subsection 15(1) of the Act; more particularly, and without restricting the generality of the foregoing, the applicants submit that:

(i)   the orders issued by McGillis J. violate sections 7 and 8 of the Charter and were not authorized by subsection 15(1) of the Act insofar as they authorize some searches while the information in support of the application for the said orders establishes no reasonable ground to believe that an offence has been committed, contrary to paragraph 45(1)(c) of the Competition Act;

(ii)  moreover, the information on its face states unreasonable conclusions in relation to the alleged facts, several of which are irrelevant or not credible;

(b)  the description of the things to be seized referred to in the information and the search warrants is so broad and general and it allows the Director to go on a veritable fishing expedition and to seize virtually anything at his discretion and the discretion of his employees, in violation of subsection 15(1) of the Act and sections 7 and 8 of the Charter; [Emphasis added.]

In his reasons, the reviewing Judge stated:[4]

[translation] Applicants’ counsel has filed a motion based on Rule 330 of the Federal Court Rules … to determine

(a)  whether McGillis J. made her orders in violation of subsection 15(1) of the Competition Act, … and

(b)  whether the informations and warrants violate sections 7 and 8 of the Charter on the ground that they fail to meet the tests in Hunter v. Southam … and Baron v. Canada….

As Sopinka J. said in R. v. Garofoli [at p. 1452]: …

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

Basing myself on this test, I conclude, in connection with the first ground relied on by the applicants, that there is evidence on the record that could warrant the issuance of the warrants by McGillis J.

With regard to the second ground relied on by the applicants, it is, in my opinion, premature. If charges are laid against the applicants, it will be up to the trial judge to decide the issues in relation to the admissibility of the evidence gathered under the warrants in accordance with sections 7, 8 and 24 of the Charter….

It is clear from these reasons, in my opinion, that the reviewing Judge overlooked the submission concerning the “broad and general” nature of the description of the things to be seized having regard to the nature of the alleged offence.

Indeed, that submission has nothing to do in this case with the existence of “evidence on the record that could warrant the issuance of the warrants” nor is it comparable to “issues in relation to the admissibility of the evidence gathered under the warrants in accordance with sections 7, 8 and 24 of the Charter”. Traditionally, it is the task of the judge sitting in review to decide, on the face of the warrant, the issue of its validity having regard to the scope of the description of the things to be seized. Thus, in Zevallos and the Queen, Re,[5] the Ontario Court of Appeal, after deciding that where the sole issue in dispute was the admissibility at trial of the evidence that was seized the reviewing judge should be deferred to the trial judge, added that its reasoning

… is confined to a situation where the only real issue is that of the admissibility at trial of the evidence relating to the search and seizure. It does not relate to situations where the application to quash is brought to other, or possibly, additional, purposes such as to prevent a search and seizure or to obtain the return of the property seized.

Accordingly, in the circumstances, I am of the opinion that in regard to this review submission, the appellants, victims of one of the most serious invasions of privacy that there is, did not have a review in the proper sense of the word, and that the remedy they are exercising in this Court is not, in regard to this submission, a right of appeal in the nature of the right that Parliament wished to preclude through the provisions of the Competition Act.[6] The appellants are entitled to review of the order made ex parte; this right was in part denied to them by the reviewing Judge; they may, it seems to me, ask this Court, in its capacity as a court of appeal and in accordance with paragraphs 27(1)(c) and 52(b) [as am. by S.C. 1990, c. 8, s. 17] of the Federal Court Act, to order the reviewing Judge to fully exercise his jurisdiction or ask this Court to do so in his place. This conclusion is meant as an extension of that was said by Sopinka J. in Kourtessis v. M.N.R.[7] in the context of section 231.3 of the Income Tax Act:

I would simply note that s. 231.3(7) does not appear to permit a challenge to the validity of the warrant on grounds that have been traditionally permitted. Instead, in an earlier proceeding in this case, warrants were quashed by Proudfoot J. for lack of disclosure and specificity. Searches and seizures involve the most serious invasion of privacy. Search warrants issued under the Criminal Code can be attracted by motion to quash brought before the superior court of the province. The grounds include failure to disclose, lack of specificity, the existence of less intrusive investigatory procedures and the like. See Shumiatcher v. Attorney-General of Saskatchewan (No. 2) (1960), 34 C.R. 154 (Sask. Q.B.), Re Church of Scientology, supra, and R. v. Sismey (1990), 55 C.C.C. (3d) 281. I would be surprised if this procedure were not available to a citizen who is subject to a search under the ITA.

The relevant extracts from one of the impugned warrants, and which are found in each of the warrants, are the following:[8]

IT IS ORDERED that this warrant issue authorizing the Director of Investigation and Research and the persons named herein to enter certain premises, search for certain records and other things therein, and copy them or seize them for examination and copying.

…

2. The offences with respect to which this warrant is issued are:

2.1 That the notaries André Côté, Fernand Côté and other persons in the city of Rivière du Loup, in the province of Quebec or elsewhere in Quebec, between the months of January 1994 and February 1995 or thereabouts, unlawfully conspired, combined, agreed or arranged with one or another or between two or more of them to prevent or lessen unduly competition in the notaries’ provision of the service of preparation, receipt and conservation of acts affecting immovable transactions, thereby contravening paragraph 45(1)(c) of the Competition Act.

4. The records and other things to be searched for are:

letters, correspondence, memoranda, reports, handwritten or typewritten notes, agendas, notices of meetings, reports of meetings, minutes of meetings, lists, datebooks, calendars, telephone messages, telephone statements of accounts, fax connection logs, credit card accounts regarding business trips, expense statements, account statements, receipts, lists of professional tariffs, prices or fees, studies, orders, contracts, agreements, books, bills, sound recordings, computer printouts, computer diskettes, cassettes or tapes or any other informatics medium, balance sheets or financial statements, flow charts or organization charts, certificates of registration or incorporation and letters patent, maps, rolls of members of the Ordre des notaires du Québec, tables, charts, guides, drafts, outlines, or other things

pertaining to the professional services provided by the notaries in the judicial district of Karmouraska, in the province of Quebec, in particular the preparation, receipt and conservation of acts affecting immovable transactions for the period commencing January 1, 1994 and ending on the date herein which are directly or indirectly related:

(a) to the identification and description of the professional services provided by the notary, in particular the preparation, receipt and conservation of acts affecting immovable transactions;\

(b) to the definition of the geographical markets in regard to their actual or potential extent;

(c) to the list of notaries practising the profession in the judicial district of Kamouraska;

(d) to the structure of the industry, inter alia, the market shares from January 1991 to the present for purposes of comparison of each of the notaries in the judicial district of Kamouraska, now or in the future, the receipts from January 1991 to this day for purposes of comparison, present or anticipated, the costs from January 1991 to the present for purposes of comparison, now or anticipated, the number of files and clients, the financial return for the industry, the barriers or obstacles to entry in the notarial profession;

(e) the formation of an association of notaries, of committees, their composition, the mandates, goals and objectives of the associations and committees;

(f) to the formulation, wording, adoption, revision, adjustment, continuation, implementation, adherence to or application of professional tariffs, prices or fees policies from January 1991 to this day for purposes of comparison, now or in the future, including travel and research costs;

(g) to meetings, encounters or other contacts concerning, inter alia, the adjustment or fixing of professional tariffs, prices or fees;

(h) to the establishment by the notaries of Rivière du Loup and Trois-Pistoles of any form of agreement for the distribution of geographical markets;

(i) to the fees schedules for notaries approved by order-in-council by the government of Quebec between December 1983 and December 1990;

(j) to measures taken to implement and enforce professional tariffs, prices or fees or an understanding, agreement or arrangement to fix professional tariffs, prices or fees;

(k) to the names, titles, definitions of tasks, responsibilities and attributions of the managers, administrators, representatives and employees participating in the formulation or implementation of professional tariffs, prices or fees policies;

(l) to samples of the handwriting of the managers, administrators, agents, representatives or employees identified with a notaries’ practice that might be used to identify the author of unknown handwriting appearing on documents carried away under this warrant;

(m) to the degree of knowledge of the Competition Act.

It is clear from the very terms of the warrant that although the alleged offence is to have “unlawfully conspired … to prevent or lessen unduly competition in notaries’ provision of the service of preparation, receipt and conservation of acts affecting immovable transactions, thereby contravening paragraph 45(1)(c) of the Competition Act” (emphasis added), the authority to seize is extended to all “things”

pertaining to the professional services provided by the notaries … in particular the preparation, receipt and conservation of acts affecting immovable transactions … which are directly or indirectly related:

(a) to the identification and description of the professional services provided by the notary, in particular the preparation, receipt and conservation of acts affecting immovable transactions; [Emphasis added.]

Consequently, the warrant on its very face covers all the professional services provided by a notary and it is only by way of particular example of such services that reference is made to the acts affecting immovable transactions, the latter, however, being the only ones faulted. It is the particular, and not the general, that the warrant should have targeted, and while I acknowledge that it is possible to allow a more general seizure in so far as it can be related to the particular, the method adopted in the case at bar, which is initially to allow the general seizure only to reduce it later to the particular as the seizing officers may see fit, in their discretion, seems to me to run fundamentally counter to the established principles.

I cannot help observing that these warrants allow the respondent to obtain information pertaining to all of the services rendered by the notaries, which would enable the respondent to determine whether, in addition to acts affecting immovable transactions, there were others affecting, for example, wills, that might be in violation of the Competition Act. My fear is confirmed, it seems to me, by what was said by the informant in the paragraph immediately preceding the very lengthy description of the things to be seized (a description adhered to down to virtually the final comma by the Judge when she issued the warrant):[9]

4. The informant further states that there are reasonable grounds to believe and he does believe that the documents and classes of documents or other things referred to hereunder will provide evidence, including evidence of similar acts, of the commission of the said offences. [Emphasis added.]

This sudden allusion to “similar acts”, when the investigation conducted by the respondent and the information contemplated only acts affecting immovable transactions, explains in my opinion the all-encompassing nature of the description of the things to be seized and confirms to what extent this description errs in scope and opens the floor to abuses.

I know that in so-called economic offences such as those found in the Competition Act the courts more readily accept that warrants are drafted in general terms. One need only consult the classic judgment in this area by the Ontario Court of Appeal, in Church of Scientology et al. and The Queen (No. 6), Re,[10] to be convinced of that. But drafting a warrant in general terms in the context of the particular offence that is alleged is one thing; drafting a warrant so as to transform the particular alleged offence into a general offence is another, and it cannot be tolerated. I adopt in this regard what was said by LeBel J.A. of the Quebec Court of Appeal in Lefebvre c. Morin,[11] as cited and approved by Tourigny J.A. in Bâtiments Fafard Inc. at autres c. Canada et autres:[12]

[translation] These requirements mean that the person to whom the search warrant application is presented should have all the necessary items of information. Failing this, he is unable to fulfil his duty. Similarly, the application must specify the object of the search, failing which it will be transformed into a purely discretionary police investigation procedure the limits of which are fixed by the police officer himself and not be the authorization.

To comply with the requirements of s. 443 Cr. Code and of the Charter, the justice issuing the warrant must himself sufficiently specify the object of the search so that the officer or policeman assigned to it is not left to define it himself. He had to be sufficiently informed of the purpose of the seizure. If he were not, he reduced his own function to that of a rubber stamp. If he were, a seizure analogous to the one he authorized had no justification.

Furthermore, it must be clearly understood that the nature of the alleged offence and the nature, which I would characterize as small-scale, of the alleged wrongdoing—the eleven impugned warrants cover the nine firms of notaries in Rivière-du-Loup and the two in Trois-Pistoles, which together comprise twenty notaries—have little in common with those found in Church of Scientology.[13] The judge who issues a warrant must satisfy himself that the means requested have some proportionality to the alleged offence and the premises in question. I am tempted to adapt to this case what Lamer J. (as he then was) said in Descôteaux et al. v. Mierzwinski:[14]

…there are places for which authorization to search should generally be granted only with reticence and, where necessary, with more conditions attached than for other places. One does not enter a church in the same way as a lion’s den, or a warehouse in the same way as a lawyer’s office.

In the circumstances, I am of the opinion that the Judge who issued the warrant did not have the authority to describe the things to be seized in the way she did and that in doing so she gave the respondent carte blanche. The appellants are fully justified in complaining that “the description of the things to be seized … is so broad and general and it allows the Director to go on a veritable fishing expedition and to seize virtually anything at his discretion and the discretion of his employees.” The order can only be rescinded.

I would allow the appeal so as to permit the appellants to apply to this Court for the purpose of obtaining the review they did not obtain in the Trial Division of the order issued ex parte against them, and, rendering the judgment that the reviewing Judge should have rendered, I would allow the application for review. I would rescind the search warrants issued on March 16, 1995, I would order that all the things seized be returned to the notaries concerned and I would order the respondent to pay the costs of the appeal and of the application for judicial review.

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