[1996] 3 F.C. 931
T-670-96
Karlheinz Schreiber (Plaintiff)
v.
The Attorney General of Canada (Defendant)
Indexed as: Schreiber v. Canada (Attorney General) (T.D.)
Trial Division, Wetston J.—Vancouver, June 13; Ottawa, July 4, 1996.
Constitutional law — Charter of Rights — Criminal process — Special case for adjudication: was Canadian standard for issuance of search warrant required to be satisfied before requesting Swiss authorities to seize plaintiff’s banking records — Pursuant to request to assist Canadian criminal investigation into fraud on Government, Swiss authorities seizing plaintiff’s banking records — Neither search warrant nor other judicial authorization obtained prior to request — Charter, s. 8 giving everyone right to security against unreasonable search, seizure — Question answered in affirmative — Application of Charter not extraterritorial — Charter applies if material connection between information requested and alleged violations of Canadian law — Information may be used in criminal prosecution in Canada — Applicant entitled to corollary benefits of Charter whether or not formally prosecuted.
Criminal justice — Letter of request procedure — Special case for adjudication: was Canadian standard for issuance of search warrant required to be satisfied before letter requesting Swiss authorities to search for and seize plaintiff’s banking records submitted — Pursuant to Canadian government’s request for assistance with criminal investigation into fraud on Government, Swiss authorities seizing plaintiff’s banking records — Neither search warrant nor other judicial authorization obtained prior to request — Question answered in affirmative — As information may be used in criminal prosecution in Canada, plaintiff entitled to Charter, s. 8 protection against unreasonable search, seizure — Prior authorization ensuring impartiality in balancing individual’s reasonable expection of privacy against government’s interest in law enforcement.
This was a special case for adjudication of the following question of law: was the Canadian standard for the issuance of a search warrant required to be satisfied before the letter requesting Swiss authorities to search for and seize the plaintiff’s banking documents and records was submitted? The plaintiff is a Canadian citizen who has bank accounts in Switzerland. Department of Justice officials, acting on behalf of the Minister, wrote to the Swiss government requesting its assistance with respect to a Canadian criminal investigation into alleged fraud on the Government of Canada. The Swiss authorities, acting under Swiss laws, seized documents and records relating to the plaintiff’s accounts. Prior to the delivery of the letter of request, neither a search warrant nor other judicial authorization, supported by information on oath, was obtained with respect to the seizure. The plaintiff submitted that he was entitled to the protection guaranteed by Charter, section 8 against unreasonable search or seizure. The defendant submitted that a privacy interest outside of Canada is not clothed with Charter protection because section 8 does not generally have extraterritorial effect. Any search or seizure resulted from the actions of Swiss authorities, acting under Swiss law.
Held, the question should be answered in the affirmative.
The application of the Charter was not extraterritorial. The plaintiff was not seeking the application of the Charter to foreign law, or to the direct activities of the Swiss government in searching for and seizing the bank records. Application of the Charter to the letter of request procedure in Canada depends on whether there is a material connection between the information requested in the letter of request, and any alleged violations of Canadian criminal law. The information sought may be used in a criminal prosecution in Canada. The application of section 8 is an inescapable product of the government’s enforcement activity within Canada. As such, the location of the search or seizure is not determinative of the question of the application of section 8. If the plaintiff can be prosecuted in Canada, he should be entitled to the corollary benefits of the Charter. This is not an unreasonable balance between the plaintiff’s right to privacy and the government’s responsibilities to enforce the criminal laws of this country. “Everyone” has the right to be secure from unreasonable search and seizure, and this entitlement is not dependent upon an individual being formally prosecuted for any alleged wrongdoing.
The purpose of section 8 is to prevent unjustified searches before they happen, and not simply to determine, after the fact, whether they ought to have occurred in the first place. Prior authorization ensures a high degree of impartiality in balancing the interests of the individual with those of the government. The need to protect against unreasonable search or seizure is no less significant when a search takes place abroad. The requirement of prior authorization does not make search or seizure outside of Canada a less powerful enforcement tool for public authorities. The unavailability of constitutionally permissible investigative techniques (i.e. a procedure under Canadian law for the prior authorization of a letter of request) is not a justification for a constitutionally impermissible investigative technique.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Evidence Act, R.S.C., 1985, c. C-5.
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. 1, 8, 10(b), 24(2).
Criminal Code, R.S.C., 1985, c. C-46, ss. 121(1), 487.01 (as enacted by S.C. 1993, c. 40, s. 15).
Federal Court Rules, C.R.C., c. 663, R. 475.
CASES JUDICIALLY CONSIDERED
APPLIED:
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; R. v. Plant, [1993] 3 S.C.R. 281; (1993), 145 A.R. 104; [1993] 8 W.W.R. 287; 12 Alta. L.R. (3d) 305; 84 C.C.C. (3d) 203; 24 C.R. (4th) 47; 17 C.R.R. (2d) 297; 157 N.R. 321; 55 W.A.C. 104; R. v. Colarusso, [1994] 1 S.C.R. 20; (1994), 110 D.L.R. (4th) 297; 87 C.C.C. (3d) 193; 26 C.R. (4th) 289; 49 M.V.R. (2d) 161; 162 N.R. 321; 69 O.A.C. 81; R. v. Kokesch, [1990] 3 S.C.R. 3; [1991] 1 W.W.R. 193; (1990), 52 B.C.L.R. (2d) 157; 61 C.C.C. (3d) 207; 1 C.R. (4th) 62; 50 C.R.R. 285; 121 N.R. 161.
DISTINGUISHED:
R. v. Terry, [1996] S.C.J. No. 62 (QL).
CONSIDERED:
R. v. Harrer, [1995] 3 S.C.R. 562; (1995), 128 D.L.R. (4th) 98.
REFERRED TO:
R. v. Garofoli, [1990] 2 S.C.R. 1421; (1990), 60 C.C.C. (3d) 161; 80 C.R. (3d) 317; 50 C.R.R. 206; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; Zingre v. The Queen et al., [1981] 2 S.C.R. 392; (1981), 127 D.L.R. (3d) 223; 10 Man. R. (2d) 62; 61 C.C.C. (2d) 465; 23 C.P.C. 259; 38 N.R. 272; Miranda v. Arizona, 384 U.S. 436 (1966); Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022; (1994), 120 D.L.R. (4th) 289; [1995] 1 W.W.R. 609; 100 B.C.L.R. (2d) 1; 51 B.C.A.C. 241; 26 C.C.L.I. (2d) 1; 22 C.C.L.T. (2d) 173; 32 C.P.C. (3d) 141; 7 M.V.R. (3d) 202; 175 N.R. 161; 77 O.A.C. 81; 84 W.A.C. 241; R. v. Eddy (T.) (1994), 119 Nfld. & P.E.I.R. 91; 370 A.P.R. 391 (S.C.T.D.).
SPECIAL CASE for adjudication: was the Canadian standard for the issuance of a search warrant required to be satisfied before a letter requesting Swiss authorities to search for and seize the plaintiff’s banking documents and records was submitted? Question answered in the affirmative.
COUNSEL:
Robert W. Hladun, Q.C. and Gary D. Braun for plaintiff.
Gerald Donegan, Q.C. and S. David Frankel, Q.C. for defendant.
SOLICITORS:
Hladun & Company, Edmonton, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
Wetston J.: The parties have agreed to a question of law in the form of a special case for adjudication. Pursuant to Rule 475 of the Federal Court Rules, C.R.C., c. 663, as amended, the parties agree that the following shall constitute all of the facts necessary for the determination of this matter.
Statement of Facts
The plaintiff is a Canadian citizen, who resides both in Canada and in Europe. The plaintiff has an interest in accounts at the Schweizerischer Bankverein (also known as the Swiss Banking Corporation), Paradaplatz 6, Zurich, Switzerland.
On September 29, 1995, Kimberly Prost, Senior Counsel and Director of the International Assistance Group of the Canadian federal Department of Justice, acting on behalf of the Minister of Justice, signed a letter of request directed to the Competent Legal Authority of Switzerland, seeking the assistance of the Swiss government with respect to a Canadian criminal investigation. (I have not attached the letter of request as part of these reasons.)
The Swiss government received and accepted the letter of request. In response to this request letter, the Swiss authorities, acting under Swiss laws, issued an order for the seizure of documents and records relating to the plaintiff’s aforesaid accounts.
An application by the plaintiff, challenging the Swiss order, was dismissed by the Swiss Federal Court on May 1, 1996. The documents and records are presently being examined by the Swiss chief federal prosecutor. If she decides to make them available to Canadian authorities, then the plaintiff can challenge that decision before the Swiss courts.
Prior to the delivery of the letter of request, no search warrant or other judicial authorization, supported by information on oath, was obtained in Canada with respect to the seizure of the plaintiff’s Swiss banking documents and records.
Question of Law to be Determined
The parties agree that the determination of the following question of law will be dispositive of the within action:
Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and Attorney General of Canada submitted the letter of request asking Swiss authorities to search for and seize the plaintiff’s banking documents and records?
The parties agree that the applicability and validity of the law under which the Swiss authorities acted is not relevant to the determination of this question.
Background
The above question of law is the only matter before me. The parties presented no evidence except for the agreed facts outlined above, and the letter of request, dated September 29, 1995. As the letter of request indicates, all information, documentation, or other evidence that would be provided to Canada, by Switzerland, was requested solely for use in relation to the investigation and prosecution of alleged violations of Canadian criminal law. These alleged offences involve fraud on the Government of Canada, pursuant to subsection 121(1) of the Canadian Criminal Code, R.S.C., 1985, c. C-46, as amended.
In its letter of request to the Swiss authorities, the Government of Canada requested, inter alia, copies of signature cards, deposit slips, cheques, drafts, transfer forms, and correspondence relating to the plaintiff’s accounts in Switzerland, as well as the contents of certain safety deposit boxes. I assume that these are the types of documents presently being examined by the Swiss chief federal prosecutor. The letter of request also provided detailed instructions to the Swiss authorities regarding certification of the records for the purposes of the Canada Evidence Act, R.S.C., 1985, c. C-5, as amended. Finally, to indicate the seriousness of the investigation and the importance of the information, the letter of request stated that any further investigation could not be conducted by the RCMP in Canada until the information from Switzerland was received.
Position of the Plaintiff
In summary, the plaintiff submits that he is entitled to the protection of section 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.) [R.S.C., 1985, Appendix II, No. 44] (the Charter), with respect to his off-shore bank accounts. The provision states:
8. Everyone has the right to be secure against unreasonable search or seizure.
The plaintiff contends that a request relating to his offshore bank accounts cannot be issued to a foreign authority unless the domestic standard for the issuance of a search warrant has first been met, i.e., reasonable grounds have been established by information on oath, before an independent judicial officer, as in a system of prior authorization: Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145. The plaintiff does not in any way assert that a Canadian warrant can be issued for a search or seizure outside of Canada.
Position of the Defendant
In brief, the defendant argues that the Charter provisions relating to the gathering of evidence do not apply in this case. More particularly, it is submitted that:
(a) the protection afforded by section 8 of the Charter does not extend to records kept or maintained in a foreign state; and,
(b) the Charter is not engaged when Canadian officials ask for assistance from a foreign sovereign state with respect to matters within that state’s borders.
Stated somewhat differently, the defendant asserts that a privacy interest outside of Canada is not clothed with Charter protection because section 8 does not generally have extraterritorial effect, with the possible exception of Canadian military personnel stationed overseas. The defendant did not advance any arguments as to reasonable limits under section 1 of the Charter. Moreover, I have not been asked to consider the application of subsection 24(2) of the Charter.
The defendant submits that the authorities relied upon by the plaintiff with respect to a reasonable expectation of privacy are concerned with the actions of Canadian investigators who are obtaining, or seeking to obtain, access to records situated in Canada. The defendant does not dispute that an individual normally has a privacy interest in his or her financial records. If those records are in Canada, then that interest is protected by section 8 of the Charter. While the plaintiff argues that the letter of request did not meet the “reasonable grounds” standard, as discussed in cases such as Hunter et al. v. Southam Inc., supra, and R. v. Garofoli, [1990] 2 S.C.R. 1421, the defendant asserts that all of the investigative activity in this case was carried out in Switzerland, not in Canada. Furthermore, the defendant contends that the letter of request was not intended to be an information to obtain a search warrant, i.e., for the purpose of establishing “reasonable grounds”; rather, the defendant argues that it was drafted for consideration by foreign officials acting under their domestic laws, and that Canadian procedures for the issuance of a warrant need not have been met ex ante.
The defendant further submits that the Charter has no extraterritorial application, particularly with respect to evidence-gathering mechanisms. In other words, there is a territorial limitation on privacy interests. Moreover, the defendant asserts that a requesting state cannot compel a foreign state to assist it in gathering evidence, nor can it control the execution of the process within the borders of a foreign state. According to the defendant, this is consistent with the principle of comity which underlies international cooperation and legal assistance: Zingre v. The Queen et al., [1981] 2 S.C.R. 392. Thus, the defendant argues that any search or seizure in the present context resulted from the actions of Swiss authorities, acting under Swiss law.
In essence, the defendant contends that the controlling variable regarding the application of section 8 of the Charter is the place where the information, or evidence, is seized. As the defendant has noted in his argument, the real issue in this case is whether or not a judicial officer in Canada, applying the standard expressed in Hunter et al. v. Southam Inc., supra, should have reviewed and pre-authorized the letter of request before it was forwarded to the officials in Switzerland.
The defendant places considerable reliance on the case of R. v. Terry, [1996] S.C.J. No. 62 (QL), and asserts that this case is dispositive of the present matter.
Analysis
Neither party could direct the Court to any specific Canadian authorities that have considered the question of law which is before me. As I indicated above, the defendant relies on Terry, supra. In that case, Mr. Terry was sought by authorities in Canada respecting a charge of murder. He was arrested in the United States, following a request for his extradition. By telephone, a Canadian investigator requested that an American police officer read Mr. Terry his Miranda rights [Miranda v. Arizona, 384 U.S. 436 (1966)] and attempt to obtain a statement from him. The American police officer carried out the request, and the statement which was obtained was entered into evidence at Mr. Terry’s trial in Canada. Before the Supreme Court of Canada, Mr. Terry argued that the Miranda warning did not meet all of the requirements of paragraph 10(b) of the Charter; therefore, the statement should have been excluded under subsection 24(2) of the Charter.
A Miranda warning is only required when police authorities are commencing an interview; in contrast, a warning under paragraph 10(b) of the Charter is required at the point of arrest. Paragraph 10(b) of the Charter states:
10. Everyone has the right on arrest or detention
…
(b) to retain and instruct counsel without delay and to be informed of that right ….
In Terry, supra, the Supreme Court of Canada concluded that paragraph 10(b) did not apply.
McLachlin J., speaking for a unanimous court, noted, at page 18, that the Supreme Court has “repeatedly affirmed the territorial limitations imposed on Canadian law by the principles of state sovereignty and international comity”. Moreover, she stated, at page 19, that “the exercise of an enforcement jurisdiction is ‘inherently territorial’”. McLachlin J. then cited with favour, at page 19, the comments of La Forest J. in R. v. Harrer , [1995] 3 S.C.R. 562, at page 574, to the effect that Canada cannot enforce its own procedural standards in proceedings undertaken by other states in their own territories.
In Terry, supra, McLachlin J. went on to state, at pages 22-23, that “[t]he framers of the Charter must be taken to have been aware of the principle of international law which, as a general rule, precludes the application of domestic laws or procedural codes to a process of enforcement effected on foreign soil. It is not for this Court to so extend its ambit”. Similarly, in Harrer, supra, McLachlin J. stated, at page 589, that every person in Canada has the right to expect that the authorities will comply with the Charter; outside of Canada, they have the right to be treated in accordance with the laws of the foreign state in question. In other words, then, the Charter generally has no extraterritorial application. Accordingly, in Terry, supra, the Supreme Court concluded that the accused failed in his contention that the conduct of the American police amounted to a Charter breach.
The defendant relies on the cases of Terry, supra; Harrer, supra and Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022, for a number of propositions. Specifically, the defendant notes that the Supreme Court of Canada, in the above decisions, has emphasized the following principles: a Canadian does not take Canadian law when travelling abroad; travellers to foreign states should know that law officers in different states co-operate with each other; extradition treaties exist; evidence taken in one state may be used in another; and, the practice of cooperation between the police of different states does not make the law of one state applicable in the other state.
While the defendant relies on Terry, supra, this decision, in my opinion, is clearly distinguishable from the present case. Terry was a case in which the appellant argued that the foreign (American) police were obliged to conform to the Charter. It is clear that the application of the Charter in Terry would have been extraterritorial; in the present case, however, the application of the Charter is not extraterritorial. I therefore do not view Terry as a bar to the application of the Charter in this case.
In the case before the Court, the plaintiff is not seeking the application of the Charter to foreign law, or to the direct activities of the Swiss government in carrying out its decision to search and seize the bank records in question. The application of the Charter clearly stops at the water’s edge. However, the question to be addressed in the case at bar is whether the standard required by section 8 of the Charter should apply to the letter of request procedure in Canada, prior to the search or seizure taking place. Of course, the answer to this question can only be considered by noting that Mr. Schreiber is the subject of a Canadian criminal investigation by Canadian authorities, and that the information sought to be obtained may be used in a criminal prosecution in Canada, pursuant to the Canadian Criminal Code. This is made clear in the letter of request, which specifically notes the following, at page 9:
With respect to any documentation obtained, the Canada Evidence Act permits the introduction of documents into evidence before a Canadian Court.
Moreover, at page 11, the letter of request states:
It is, therefore, further requested that any business record obtained in response to this request be accompanied by a certification as described in order to meet the admissibility requirements of the Canada Evidence Act.
The last paragraph is also of significance, wherein the letter of request states, at page 11:
This investigation is of serious concern to the Government of Canada as it involves criminal activity on the part of a former Prime Minister. Further investigation cannot be conducted by the RCMP until the information available in Switzerland is received.
Hence, the purpose for which the information was required was made apparent in the letter of request.
In analyzing whether state inspection of computer records implicates section 8 of the Charter, Sopinka J., in R. v. Plant, [1993] 3 S.C.R. 281, stated the following, at page 293:
Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of the case at bar.
In my opinion, to apply the Charter to the letter of request procedure in Canada depends on whether there is a material connection between the information requested in the letter of request, and any alleged violations of Canadian criminal law. The fact that the information requested and provided may not become evidence in a criminal trial is not, in my view, a significant consideration.
In the present case, the defendant conceded that judicial notice could be taken of the fact that Canada would not send a letter of request to an unfriendly, uncooperative state. In this regard, the Canadian officials knew that the Swiss authorities would seize the requested records, subject, of course, to Swiss law. As such, it was not simply a request; there was a reasonable expectation of its acceptance, and a likelihood of it being acted upon.
In Plant, supra, Sopinka J., at page 291, reiterated the consistent view of the Supreme Court of Canada that “[t]he purpose of s. 8 is to protect against intrusion of the state on an individual’s privacy”. The limits on such intrusions are balanced between a reasonable expectation of privacy and the government’s interest in law enforcement. Furthermore, at page 291, Sopinka J. noted that section 8 of the Charter protects people, not property. Similarly, in R. v. Colarusso, [1994] 1 S.C.R. 20, La Forest J. stated the following, at page 60:
In both Hunter and Dyment, the Court emphasized that what is protected by s. 8 is people, not places or things. The principal right protected by s. 8 is individual privacy, and the provision must be purposively applied to that end.
In the present case, the defendant does not deny that the plaintiff has a privacy interest in the property in question, in that the banking records are personal and confidential.
I am of the view that the societal interest in protecting an individual’s privacy does not shift. In the present context, for example, it does not shift from Canada to Switzerland merely because the seizure took place there. I am not suggesting that Charter protection travels with the plaintiff; rather, the application of section 8 is an inescapable product of the government’s enforcement activity within Canada. As such, I do not agree that, in this case, the location of the search or seizure is determinative of the question of the application of section 8 of the Charter.
As I indicated above, I do not consider that, in this case, Charter protection is being sought in an extraterritorial context. Simply because the plaintiff chose to have bank accounts in Switzerland is not determinative of the matter. If the plaintiff can be prosecuted in Canada, I see no reason why he should not be entitled to the corollary benefits of the Charter. I do not consider this to be an unreasonable balance between the plaintiff’s rights and the government’s responsibilities to enforce the criminal laws of this country. Obviously, “everyone” has the right to be secure from unreasonable search and seizure, and this entitlement is not dependent upon an individual being formally prosecuted for any alleged wrongdoing. Indeed, as Dickson J. [as he then was] stated in Hunter et al. v. Southam Inc. , supra, at page 160, the purpose of section 8 of the Charter is to prevent unjustified searches before they happen, and not simply to determine, after the fact, whether they ought to have occurred in the first place.
The defendant stated, during argument, that the main issue in this case is whether or not prior authorization was necessary before the letter of request was sent to the Swiss authorities. On the issue of prior authorization, Dickson J., [as he then was] in Hunter et al. v. Southam Inc., supra, stated as follows, at pages 161-162:
The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior.
Furthermore, at page 167, Dickson J. noted:
The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.
Dickson J. then went on to state, at page 168:
In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure.
Prior authorization therefore ensures a high degree of impartiality in balancing the interests of the individual with those of the government in law enforcement. The notion that the balancing can take place between police investigators and government enforcement officials is not tenable. The same neutrality is required, in my opinion, whether the search or seizure takes place under a warrant issued in Canada, or whether it takes place by means of a letter of request procedure to be acted upon outside of Canada. The need to protect against unreasonable search or seizure is no less significant when a search takes place abroad, rather than within Canada. The requirement of prior authorization does not, in my opinion, make search or seizure outside of Canada a less powerful enforcement tool for public authorities.
I recognize that there may not exist a procedure presently under Canadian law for the prior authorization of a letter of request. However, the unavailability of constitutionally permissible investigative techniques is not a justification for a constitutionally impermissible investigative technique: per Sopinka J. in R. v. Kokesch, [1990] 3 S.C.R. 3, at page 28; R. v. Eddy (T.) (1994), 119 Nfld. & P.E.I.R. 91 (S.C.T.D.). Whether or not section 487.01 [as enacted by S.C. 1993, c. 40, s. 15] of the Criminal Code, which deals with general warrants, may be used for these purposes is not a matter that I need to decide. Nevertheless, I believe it unlikely that the provision would apply.
I noted earlier that no arguments were pleaded under section 1 of the Charter. However, the defendant did highlight, by way of example, some of the implications for law enforcement, should pre-authorization be required. Nevertheless, no detailed policy arguments were advanced by the defendant. For instance, the defendant did not extensively discuss the effects, if any, which prior authorization would have on such matters as international cooperation; joint international investigations; gathering evidence outside of Canada for use in Canada; information sharing and other legal assistance; and the capacity to enforce Canadian criminal laws.
In conclusion, the parties stated the following question:
Was the Canadian standard for the issuance of a search warrant required to be satisfied before the Minister of Justice and the Attorney General of Canada submitted the letter of request asking Swiss authorities to search for and seize the plaintiff’s banking documents and records?
In my opinion, the answer to this question is yes. The plaintiff shall have his costs.