T-425-87
In the Matter of the Competition Act, S.C. 1986,
c. 26
And in the Matter of Norvinca Inc.
And in the Matter of reports to a Judge pursuant
to section 15(1) of the Competition Act
And in the Matter of an application, pursuant to
section 15(3) of the Competition Act, for an Order
for retention of records seized upon execution of
warrants issued pursuant to section 13(1) of the
Competition Act, ex rel. Ronald Catton
INDEXED AS: NORVINCA INC. (RE)
Trial Division, Denault J.—Ottawa, April 2 and 6,
1987.
Combines — Ex parte application for order pursuant to
Competition Act, s. 15 permitting retention of records seized
pursuant to search warrants — Director authorized to retain
seized records only if judge satisfied that required for inquiry
or any proceeding under Act — Act not requiring notice of
application — Application dismissed — S. 15 requiring
judicial act, not administrative one, to be exercised in presence
of owner of seized records or after duly authorized notice of
application — Principles underlying Criminal Code, s. 446,
not necessarily applicable to s. 15 — Competition Act, R.S.C.
1970, c. 23 (as am. by S.C. 1986, c. 26, s. 19), ss. 13 (as am.
idem, s. 24), 15 (as am. idem) — Criminal Code, R.S.C. 1970,
c. C-34, s. 446.
CASES JUDICIALLY CONSIDERED
DISTING 1 UISHED:
R. v. Church of Scientology (1987), 18 O.A.C. 321
(H.C.).
REFERRED TO:
Re Famous Players Ltd. et al. v. Director of Investiga
tion & Research (1986), 29 C.C.C. (3d) 251 (Ont. H.C.).
COUNSEL:
Winston Fogarty for applicant.
No one appearing for respondent.
SOLICITOR:
Deputy Attorney General of Canada for
applicant.
No one appearing for respondent.
The following are the reasons for order ren
dered in English by
DENAULT J.: This is an ex parte application for
an order pursuant to section 15 of the Competition
Act [R.S.C. 1970, c. 23 (as am. by S.C. 1986, c.
26, s. 19)], permitting the retention of documents
seized pursuant to search warrants issued by the
Honourable Mr. Justice Joyal on February 27,
1987, pursuant to section 13 [as am. by S.C. 1986,
c. 26, s. 24] of this Act, and executed on March 4,
1987.
At the beginning of the hearing, the Court
questioned the applicant's counsel as to the appro
priateness of the ex parte procedure, and as to why
the party whose documents were seized, had not
been served with a copy of that application. Coun
sel is relying upon a recent judgment of the
Ontario Court of Appeal in R. v. Church of Scien-
tology (1987), 18 O.A.C. 321 (H.C.) and in Re
Famous Players Ltd. et al. v. Director of Investi
gation & Research a decision of the Ontario High
Court of Justice ((1986), 29 C.C.C. (3d) 251).
Counsel argued that the same principles of
interpretation of section 446 of the Criminal Code
[R.S.C. 1970, c. C-34] should apply to the Com
petition Act. For instance, he argued that in inter
preting section 15 [as am. by S.C. 1986, c. 26, s.
24] of the Competition Act, the principle to be
applied is that "The original search warrant must
be judicially authorized and what follows there
from is an administrative act". (Church of Scien-
tology, at page 395). He further argued that since
there is no requirement in the Act that a notice of
application for these detention orders be given to
the person from whom the documents were seized,
the Director can make an ex parte application.
I do not agree. In my opinion, the principles
underlying section 446 of the Criminal Code are
not necessarily applicable to section 15 of this Act.
Parliament has enacted that a warrant, under this
Act, should issue only under judicial control (sec-
tion 13), and, for obvious reasons, on an ex parte
basis. Once the warrant has been executed, section
15 states that:
15. (1) Where a record or other thing is seized pursuant to
paragraph 13(1)(d), subsection 13(7) or section 14, the Direc
tor or his authorized representative shall, as soon as
practicable,
(a) take the record or other thing before the judge who
issued the warrant or a judge of the same court or, if no
warrant was issued, before a judge of a superior or county
court or of the Federal Court; or
(b) make a report in respect of the record or other thing to a
judge determined in accordance with paragraph (a).
(2) A report to a judge under paragraph (1)(b) in respect of
a record or other thing shall include
(a) a statement as to whether the record or other thing was
seized pursuant to paragraph 13(1)(d), subsection 13(7) or
section 14;
(b) a description of the premises searched;
(c) a description of the record or other thing seized; and
(d) the location in which it is detained.
(3) Where a record or other thing is seized pursuant to
section 13 or 14, the judge before whom it is taken or to whom
a report is made in respect of it pursuant to this section may, if
he is satisfied that the record or other thing is required for an
inquiry or any proceeding under this Act, authorize the Direc
tor to retain it.
It seems obvious to me that, in enacting this
section, the legislator wanted to make sure, by
another form of judicial control, that the Director
should be authorized to retain the records or
things seized only if the judge is satisfied that they
are "required for an inquiry or any proceeding
under this Act". That control does not provide for
the presiding judge to review the previous order of
his colleague, but to verify, before granting reten
tion, the usefulness of the seized records. This is
not a mere administrative act but a judicial one,
and it should be exercised only in the presence of
the person whose objects were seized or after a
duly served notice of that application.
Accordingly, the ex parte application, as such, is
denied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.