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T-4424-81
Réjean Racine (Applicant)
v.
The Queen (Respondent)
and
Michel Gailloux (Mis -en-cause)
Trial Division, Dubé J.—Montreal, September 21; Ottawa, September 28, 1981.
Crown — Seizure — Application to quash a seizure and have the seized property returned to applicant — Mis -en- cause, an inspector under the Precious Metals Marking Act, seized some jewellery kept in a safety deposit box of a bank following seizure of same by an R.C.M.P. officer on appli cant's premises — Section 7 of the Act providing for seizure by inspector on dealer's premises — Whether seizure of property located at an R.C.M.P. station or in a safety deposit box of a bank, lawful — Seizure quashed — Section 7 of the Act authorized the inspector to seize the article on a dealer's premises and nowhere else — Precious Metals Marking Act, R.S.C. 1970, c. P-19, s. 7 — Income Tax Act, S.C. 1970-71- 72, c. 63, s. 231(1)(d) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Royal American Shows, Inc. v. Minister of National Revenue [1978] 1 F.C. 72 (reversing [1976] 1 F.C. 269), applied. Burnett v. Minister of National Revenue 77 DTC 5059, referred to.
APPLICATION. COUNSEL:
Denis Peloquin for applicant.
Richard Corbeil for respondent and mis -en-
cause.
SOLICITORS:
Denis Peloquin, Montreal, for applicant. Deputy Attorney General of Canada for re spondent and mis - en - cause.
The following is the English version of the reasons for judgment rendered by
Dust J.: This is an application for a seizure to be quashed and vacated and the seized property returned pursuant to section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
On April 3, 1981, in response to a telephone call from Daniel Roy, a Royal Canadian Mounted Police officer, the mis -en-cause, who is an inspec tor designated under the Precious Metals Marking Act,' went to the Réjean Racine jewellery store in St -Hyacinthe, Quebec, and undertook an inspec tion of all the jewellery on display. He found that several pieces of jewellery bore a marking which was not in accordance with the said Act. He then identified 218 pieces of jewellery which were set apart in a bag by officer Roy, who kept them in his possession, as he intended to seize them and in fact did seize them in connection with alleged offences under the Customs Act, R.S.C. 1970, c. C-40.
On June 26, 1981 officer Roy told inspector Gailloux that the 218 pieces of jewellery in ques tion were now available. The two men met at the St -Hyacinthe R.C.M.P. office and went to the bank where the bag containing the jewellery was being kept in a safety deposit box. The inspector made the seizure and wrote up a notice of seizure and retention, then took possession of the jewellery which officer Roy gave him. The inspector subse quently found that offences had been committed with respect to 109 of the 218 pieces of jewellery seized.
The inspector alleged by affidavit that formal informations for offences against the Precious Metals Marking Act would be laid by September 24, 1981 with respect to these pieces of jewellery. He further stated that on September 10, 1981 a seizure of the 218 pieces of jewellery was made and that he was appointed custodian of the said jewellery under the latter seizure. This seizure was made pursuant to an order of a judge of the Federal Court, acting on a certificate filed in the Registry of this Court under the authority of the Income Tax Act, S.C. 1970-71-72, c. 63, ordering any bailiff responsible for executing the writ of fieri facias to open premises and appoint a custodi an other than the debtor.
Applicant alleged that the seizure made by in spector Michel Gailloux on June 26, 1981 is unlawful and contrary to the Precious Metals Marking Act. The powers of entering, inspecting
' R.S.C. 1970, c. P-19.
and seizing under that Act are contained in section 7, which reads as follows:
7. (1) An inspector may at any reasonable time enter the premises of any dealer, require the production for inspection of any precious metal article upon the premises of a dealer and seize any such article that he reasonably suspects is marked otherwise than in accordance with this Act and the regulations.
(2) Any article seized pursuant to subsection (1) may be retained for a period of ninety days and, if before the expiration of such period any proceedings in respect to such article are taken under this Act, the article may be retained until such proceedings are finally disposed of.
Applicant maintained that the inspector's power is thus to enter a dealer's premises, require the production of a precious metal article found there and seize it on the premises; the inspector is not entitled to seize an article which is located at an R.C.M.P. station (the location described in the notice of seizure and retention), or in a safety deposit box of a bank (as alleged in the inspector's affidavit).
In Royal American Shows, Inc. v. M.N.R. 2 , an agent of the Minister had seized certain docu ments of the appellant which were located at the Edmonton police station, pursuant to the provi sions of paragraph 231(1)(d) of the Income Tax Act 3 . The Trial Judge held that the power of seizure was traditionally subject to review by the Court, and that it was the Trial Division which exercised jurisdiction in the circumstances. A majority of the Court of Appeal held that the power of seizure defined in the aforementioned
2 [ 1976] 1 F.C. 269.
3 S.C. 1970-71-72, c. 63.
231. (1) Any person thereunto authorized by the Minister, for any purpose related to the administration or enforcement of this Act, may, at all reasonable times, enter into any premises or place where any business is carried on or any property is kept or anything is done in connection with any business or any books or records are or should be kept, and
(d) if, during the course of an audit or examination, it appears to him that there has been a violation of this Act or a regulation, seize and take away any of the documents, books, records, papers or things that may be required as evidence as to the violation of any provision of this Act or a regulation.
paragraph could not validly be exercised at the location where it had purported to be exercised. This extract" from the decision of Le Dain J. clarifies the position:
I turn then to the,question of whether a seizure at the Edmonton City Police Station is one that could be authorized by section 231(1)(d). In my opinion section 231(1)(d) cannot be construed to mean that an authorized person may seize and take away any documents, books, records, papers or things wherever and under whatever circumstances he may find them. It is not an independent and unqualified power of seizure. The object of section 231(1) is to permit a person authorized by the Minister to enter certain places for the purpose of making an audit or examination. If in the course of such audit or examina tion it appears to him that there has been a violation of the Act or regulations he may seize and take away any documents, books, records, papers or things that may be required as evidence of such violation. It is a power of seizure that arises in certain defined circumstances. It is related to the power to enter for the purpose of audit or examination and is necessarily limited in its potential scope by that power. The power to seize can only be validly exercised if it is exercised pursuant to an entry and audit or examination authorized by section 231(1)(a).
The Edmonton City Police Station is obviously not a place where any business is carried on or anything is done in connec tion with any business within the meaning of section 231(1).
Shortly afterwards, my brother Mahoney J. quashed a seizure and returned documents seized, under the provisions of the same paragraph 231(1)(d) of the Income Tax Act, at an R.C.M.P. station in Toronto. He ordered the return of the documents to the appellant company. 5
In my view, the provisions of section 7 of the Precious Metals Marking Act are even more spe cific than those of the aforementioned paragraph of the Income Tax Act. A measure as drastic as the seizure of private property must be carried out strictly within the limits prescribed by the Act. In the case at bar, section 7 authorized the inspector to seize the article on a dealer's premises, and nowhere else. This seizure must therefore be quashed.
However, it does not follow that the 218 pieces of jewellery must be returned to applicant.
It should be borne in mind that two other seiz ures, the legality of which is not in dispute, were made with respect to the same articles: the first
4 [1978] 1 F.C. 72, at pp. 82-83.
5 Burnett v. M.N.R. 77 DTC 5059.
seizure by the R.C.M.P. under the Customs Act, and the more recent seizure by the Minister of National Revenue under the Income Tax Act. Following this second seizure the articles remained in the possession of inspector Gailloux, who had custody of them. It is accordingly ordered that the jewellery in question remain in the latter's posses sion as custodian on behalf of the Minister of National Revenue, pursuant to the order of this Court dated April 16, 1981 as executed by the bailiff on September 10, 1981.
Counsel for the respondent and the mis -en-cause requested a period of ten days to file an appeal from this decision in the event that the seizure was quashed. This request is justified and must similar ly be allowed in favour of applicant; the mis -en- cause, as custodian on behalf of the Minister of National Revenue, shall therefore not relinquish the jewellery before the ten-day period has ex pired, or before a decision of the Court of Appeal if the present decision is appealed.
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